This action, like the action of quo warranto, and the proceeding by information in the nature of quo warranto, where the defendant is in the exercise of the duties of an office, involves the question of his right to exercise those duties, and the burden of proof rests upon him to establish his right. "The trial is had upon the right of the party holding the office." (4 Cow., 323; Cole on Quo Warranto, 221.) Where, as in the present case, the relator is a claimant of the office, and a party to the action, the trial also involves his *Page 64 right as well as the right of the defendant. (Code of Procedure, § 436; 2 Kern., 433; 16 Barb., 373.)
It appears to have been assumed, at the commencement of the trial in this case, that the defendant had a prima facie title to the office, and the plaintiffs took the initiative to disprove his right and establish that of the relator. The evidence produced by the plaintiffs was unquestionably sufficient, in the absence of further proof, for that purpose. According to well-settled rules, the board of canvassers erred in refusing to allow to the relator the nineteen votes given for Moses Smith, and M.M. Smith, the addition of which, to his unquestioned vote, would have given him four majority over the defendant, after adding to his vote the three votes given for D. Pease, and one for Deodate Beas; and five majority if the last mentioned vote were not counted for the defendant, about the propriety of which there might be some question. (8 Cow., 102; 5 Denio, 409.)
This state of facts must be decisive in favor of the plaintiffs, if the position taken in their behalf is sound, that it is not competent for the court, in trials upon quo warranto, to go behind the ballot box, and inquire into the qualifications of the voters whose ballots have been received.
The first ground upon which this position is attempted to be sustained is, that inspectors of elections are judicial officers, whose decisions in receiving the ballots of voters are final and conclusive.
So far as the subject has been touched upon by previous decisions, there is found little or nothing to sustain this position, and I am satisfied that it cannot be sustained. In the celebrated case, in England, of Ashby v. White (2 Lord Ray., 938; 1 Bro. Par. Cases, 45, 1st ed.), as finally decided by the House of Lords, officers having the powers of our inspectors of election and boards of county canvassers combined were held to act ministerially, and not judicially, in holding elections and making return of the votes.
In Buller's Nisi Prius (p. 64), it is said that an action on the case lies "for a willful misbehavior in a ministerial office *Page 65 by which the party is damnified, as denying a poll to one who stands candidate for an elective office (such as bridge-master), and it need not be averred in the declaration that he would have been chosen if the poll had been taken. So for refusing to take his vote at an election. So for not returning him who is duly chosen." (Referring to 1 Vent., 55; 2 Liv., 55.)
In Jenkins v. Waldron (11 John., 114), the principle is recognized that inspectors of election, in this State, are ministerial officers. The action against the inspectors in that case failed, not because the defendants were held to be judicial officers, but because it was not shown that they acted with malice. If they had acted as judicial officers, no civil action would have lain against them, even if charged with malice. (12 Co., 24; 1 Salk., 396, 397.)
In the case of the People v. B. R. Turnpike Co. (23 Wend., 228), COWEN, J., says: "The office of inspectors is merely ministerial. On a given course of circumstances, well defined by constitution or statute, they are bound to receive or count votes and give certificates of election. They have no more discretion than a sheriff in disposing of real estate upon execution." (Exparte Heath, 3 Hill, 47; The People v. Seaman, 5 Denio, 411.)
The position that inspectors of election are judicial officers, would prove too much for the plaintiffs' case. If they act judicially in receiving votes, they also act judicially in counting them, and declaring and certifying the result. If their act is conclusive in the one case, it is conclusive in the other; and the plaintiffs must rest contented with their reports, which, combined, gave the greatest number of votes to the defendant. Inspectors are required to decide some questions, but they are such as ministerial officers are often required to decide. A county clerk, before recording a deed, must decide whether it is legally proved or acknowledged, but his decision is not conclusive; a sheriff must decide whether the person whom he arrests is the person described in his process, but his decision is not judicial, and he acts at his peril. (6 Cow., 456.)
Under section 20 (1 R.S., 5th ed., 430), inspectors may be *Page 66 required to decide whether the person offering his vote has or has not refused to answer fully all the questions put to him, before they can reject his vote on the ground of his refusal; under section 23, they must decide whether the voter is "a colored man" or not, before they determine what oath shall be administered to him; under section 28 (p. 431), they must decide upon the sufficiency of the record of conviction, before rejecting the vote of one challenged on the ground of his conviction of a crime, and if a pardon is produced, must pass upon the genuineness and sufficiency of the pardon; and under sections 2 and 40 (pp. 418, 433), they may be required to decide what constitutes a bet or wager on the result of the election, before receiving or rejecting the vote of one challenged under those sections. In these cases the inspectors may be required to decide important questions, and their decisions, for the purpose for which they are made, that of determining whether the votes shall be received or rejected, are final; but I do not think they are conclusive with regard to the legality of the votes when the question is presented in an action properly instituted to try the right of persons elected to office, or defeated, by the result of their decisions. They cannot call witnesses — they can receive no oral testimony excepting the oath of the voter, and no documentary evidence, unless the challenge is based on an alleged conviction of crime. The necessities of the occasion absolutely preclude any more thorough investigation, and demand an immediate and irrevocable decision. For this the law provides. In one respect the decision is final and conclusive, and that is, that the vote shall be received or rejected; but if my view of the intention of the statutes is correct, it leaves the question open for more deliberate adjudication whether the voter had or had not a right to vote. Great interests often depend upon these questions. They lie at the foundation of the government, and it is of the utmost importance that the means of detecting and exposing fraud and imposition, and correcting error, should be such as to secure the confidence of the people in the ultimate result of elections. *Page 67
If, however, it be conceded that, in those special cases where express authority is given to the inspectors to receive or reject votes, they act judicially, it does not follow that their judicial power extends to other cases. It certainly does not, if they have committed to them no discretion in regard to the reception of other votes. In my opinion, they have no such discretion. With the exception of the cases to which reference has been made, viz., where the person offering his vote refuses to take the preliminary or appropriate final oath; or refuses to answer fully all the questions put to him by the inspectors; or has been convicted of bribery, or any infamous crime; or has made, or is interested in, a bet or wager on the result of the election, there is no express authority given to the inspectors to reject any vote, and I regard it as entirely clear that they have no such authority. The express authority given in those special cases would seem to exclude the idea of a general implied authority embracing all cases. The course required by the statute, to be pursued where the right of any person to vote is challenged, cannot be reconciled with any discretionary power of rejection vested in the inspectors. (1 R.S., 5th ed., p. 430, §§ 18-24.) The inspectors are, first, to administer what is called "the preliminary oath," requiring the person offering the vote to answer such questions as shall be put to him touching his place of residence and qualifications as an elector. The statute then mentions several questions which are to be addressed to him by the inspectors, and authorizes such other questions as may tend to test his qualifications as a voter. If he refuses to take the oath, or to answer fully, his vote is to be rejected; but if he answers fully, the inspectors are required to point out to him the qualifications, if any, in which he shall appear to them deficient. If he still persists in his right to vote, and the challenge is not withdrawn, the inspectors are required to administer to him the general oath, in which he states in detail, and swears that he possesses, all the qualifications which the Constitution and laws require the voter to possess. If he refuses to take the oath, his vote shall be rejected. Is not the inference irresistible, *Page 68 that, if he takes the oath, his vote shall be received? If his vote is to be rejected after he takes the oath, why not reject it before? As I construe the statutes, the inspectors have no discretion left to them in such a case (where the person offering the vote is not shown by a record to have been convicted of crime, or by his own oath to be interested in a bet upon the election), but must deposit the ballot in the box, whatever they may believe or know of the want of qualifications of the voter. They are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge.
Another section of the statute strongly confirms this conclusion. That section provides as follows: "Section 36. It shall be the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect not to be duly qualified as an elector." It is evident, from this section, that the inspector has no power to reject the vote, even when he knows the person offering it not to be a voter. His duty is discharged by requiring the voter to submit to the examination, and to take the oath which the statute prescribes.
In the second place, it is insisted, without reference to the decisions of the inspectors, that the only examination of the qualifications of the voter which is permitted, is that which is or may be made before his ballot is received.
An argument of some force in favor of this position is derived from the fact that it does not appear that the courts of this State, upon the trial of actions like the present, have ever entered upon the investigation of the qualification of voters. This argument is substantially balanced by the absence of any refusal of the courts to do so, unless in a single case at circuit which has not been reported. The absence of precedents in favor of the action against returning officers was very strongly urged in the case of Ashby v. White (supra), especially upon the argument in the House of Lords, but it did not prevail, and I do not think the kindred argument is entitled to much consideration in this case. *Page 69
The judgment, in cases of this kind, is required to be rendered "upon the right of the defendant, and also upon the rights of the party alleged to be entitled" to the office. (Code, § 436.) As was said by BRONSON, J., in the case of Vail (20 Wend., 16), the action "reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into andascertains the abstract question of right." The greatest number of lawful votes alone gives the right to an elective office in this State; and as no adjudication can be had to determine the lawfulness of votes before they are received, that question must be open to examination by courts afterwards, or there is no power anywhere in the government to discriminate between those which are lawful and those which are unlawful. Indeed, if the rule contended for by the plaintiffs be adopted, the distinction between lawful and unlawful votes ceases to exist when they reach the ballot box. This objection is not answered by referring to the statutes requiring evidence of the right of the voter, before his vote can be received. It is only when the right to vote is challenged that any evidence is required, and there is room for great frauds to be practiced, as well to prevent challenges as to render them ineffectual when made. The only evidence required in any case is the oath of the person offering his vote, no contradiction of which is allowed, nor is there any power (if the courts do not possess it), to deny to such oath the effect of honest and truthful testimony, although every one who hears it may know it to be false and fraudulent. Neither is it an answer to say that the offender may be punished, as the government, if that were the only remedy, would have no means of defence against the direct results of such fraud. I am unwilling to believe that, in a matter of such vital importance as the choice of all its elective officers, the State is thus exposed to assault. The registry act was not in existence when the election now in question took place; but if it had been, it would not have changed the aspect of the present question. Its only effect in this respect is, to require from the voter two oaths instead of one, making the oath equally conclusive *Page 70 in each case. (Laws of 1859, ch. 380, § 5.) It furnishes additional safeguards against the commission of frauds at elections, and may aid in securing the punishment of offenders, but it furnishes no means of protecting the government against the consequences of such frauds, and therefore leaves the present question precisely where it stood before.
In England, on trials of this nature, the legality of the votes is always open to inquiry, as it certainly is in this country in suits involving the election of officers of private corporations. (Cole on Quo Warranto, 146-221; Ang. Ames on Corporations, ch. 4, § 9; 7 Cow., 153; 19 Wend., 635.) The comparatively narrow limits within which the right of suffrage is confined in England deprive the decisions of courts in that country, upon this question, of much of the influence which would be justly due to them upon other questions; and the decisions in corporation cases are still less directly applicable to that under consideration. Those cases, however, show that where the right to an office is in controversy, it is not, as a general rule, conclusively determined by the number of votes which the claimant may have received, but the further question, whether the votes were legal, is open for consideration. Without deciding that question when it is presented, judgment cannot be rendered "upon the right" of the parties as the statute requires. (Code, § 436.)
In contests in regard to elections to Congress, the legality of the votes, as well as their number, has always been a subject of inquiry (Cushing on the Law and Practice of Legislative Assemblies, § 198); and "I think a court and jury, with better means of arriving at truth, may pursue the same course." (20 Wend., 14.)
The inconvenience which it is supposed may arise in the trial of such questions, from the great number of witnesses which may be required, especially in trials relating to State officers, has been relied upon as a reason why it should not be held that courts can pass behind the ballot boxes, and try and determine the qualifications of the voters whose votes may have been received or rejected. This argument is certainly not *Page 71 without force, as cases may readily be imagined where anything entitled to the name of a trial of the legitimate issues which such an action might present would be literally impossible; but believing, as I do, that the statutes have unquestionably left this duty to the courts, no inconvenience which could be anticipated would justify courts in declining to discharge that duty as far as possible. The past experience of the government has not been such as to induce the court to pay very much heed to this argument from inconvenience. So far as the books of reports show, there has been no case in the State, prior to this, where any such question has been presented, and this does not appear to have involved such a number of issues, or required the examination of such a number of witnesses, as to render the prospect of such trials alarming. But if this were otherwise, the remedy would belong to the legislature and not to the courts. A rule of pleading requiring the parties to specify the votes objected to, and the grounds of objection, or a rule of practice requiring an exchange of notices to the same effect, and the limitation of the parties in their proof to the cases and grounds so specified, as is the practice in England in regard to contested parliamentary elections, would go far to remove the difficulty if it should be found to exist. (Roe on the Law of Elections, part 3, ch. 4.) A similar practice is adopted where elections to Congress are contested. (9 Stat. at Large, 568, § 1; Brightley's Dig., 254, § 14, and note a.)
My conclusion, therefore, is, that the judge decided correctly at the trial, that evidence was admissible to show that votes received and counted for either of the parties were given by persons who were not qualified electors.
There was no error in the ruling of the judge, that voters might be asked the question for whom they voted. The only grounds of the objection appear to have been, that under our system of elections, which allows, indeed requires, the secret ballot, (1 R.S., 5th ed., 426, § 7,) it is not proper to compel a voter to disclose for whom he voted; and that where the object is to show that he voted illegally, and was, therefore, *Page 72 possibly guilty of a misdemeanor, he should not be required to give evidence tending to establish his guilt. It is a sufficient answer to these objections, that they are available only to the witness, and not to the party. In regard to the last ground, there is the further answer (the witness having admitted that he voted), that an answer to the question, for whom he voted, could have no bearing upon his guilt or innocence.
The objections to the order in which the proof of the facts should be introduced, involved the exercise of discretion merely, on the part of the judge, which is not, in such cases, reviewable on appeal.
When a voter refuses to disclose, or fails to remember, for whom he voted, I think it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact. Such is the established rule in election cases before legislative committees, which assume to be governed by the legal rules of evidence (Cushing's Law and Practice of Legislative Assemblies, §§ 199, 210); and within that rule it was proper, in connection with the other circumstances stated by the witness, Loftis, to ask him for whom he intended to vote; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote. The refusal to strike out the testimony of Conrad Hoch involved the same principle.
The poll lists of New Bremen and Croghan were rightfully admitted. The only fact in regard to them which was requisite to be established to authorize their admission as evidence appears to have been undisputed, viz., that they were the poll lists of these towns or districts, kept at the election in question. The provisions of the statute relative to such lists must be regarded, mainly, as directory only (14 Barb., 290, 291; 4 Seld., 89); and any failure to comply with such provisions, if lists were actually kept, would not justify their rejection, when offered in evidence. There does not appear, however, to have been any material departure from the directions of the statute in keeping the lists. Neither a heading to *Page 73 show what the paper was, nor the signatures of inspectors or clerks, was required. (1 R.S., 5th ed., 432, § 34; 436, § 57.) The anterior filing of one of the lists was of no moment, so long as its genuineness was unquestioned. What the lists proved or failed to prove, could not be considered in deciding the question of their admissibility.
There was sufficient evidence offered by the defendant to justify the refusal of the ruling, asked for by the plaintiffs' counsel, "that no proof had been given to go to the jury sufficient to overcome the five majority conceded to the relator," of the votes given. The judge could not be understood as ruling that the proof was sufficient to overcome the majority, but only that it was sufficient to be submitted to the jury for their consideration as to its effect.
The refusal to allow the examination of the witness, McRea, in reply to the defendant's proof, under the circumstances disclosed in the case, presented only an exercise of discretion on the part of the judge, which ought not to be reviewed here. If there had been no arrangement made on the subject at the close of the plaintiff's opening testimony, the evidence offered would have been admissible in reply, as a matter of right, and its rejection would have furnished good ground for a new trial. But the express reservation, with the approbation of the court, of the right to call (at the close of the defendant's testimony, as I understand the arrangement) certain witnesses who were named, "for the purpose of showing that illegal votes had been cast at said election for the defendant," might properly be regarded as restricting the plaintiff to those witnesses only, in reply on that subject, although the facts offered to be proved would have been proper in reply, and might have been proved by any witnesses, if no arrangement had been made. It is apparent that the course attempted to be pursued by the plaintiffs might, if allowed, have operated as a surprise upon the defendant. The judge, in whose presence the arrangement was made, was much better qualified to decide, whether it was likely to do so, than this court can be. *Page 74 The arrangement had the effect to change, what otherwise would have been a question of right, into one of discretion.
The two first exceptions to the charge present only the question, already considered, whether the qualifications of the voters could be inquired into on the trial, and, therefore, require no further notice.
The charge in relation to the change of residence of Bellinger, was too clearly correct to require comment. (4 Cow., 516, note 2; Westlake on Private International Law, 36.)
No doubt can arise in regard to the correctness of the charge, that where it was proved that a voter was alien born, and there was prima facie evidence that he had not become a citizen by naturalization or otherwise, the vote given by him must be rejected, unless proof of his citizenship was produced.
The refusal to charge in the case of Rivinot, that if the jury found that he was an alien born, then, in the absence of any proof of naturalization, his vote must be disallowed; and the charge, that in such case the legal presumption was that he had been naturalized, presents a question of greater difficulty. As a general rule affirmative facts are not to be presumed, but must be proved by the party asserting them. There are, however, some exceptions to this rule, and the question presented by this part of the charge is, whether the case falls within any of those exceptions. I am of opinion that it does, and that the charge was correct.
Greenleaf, in his work on Evidence, says: "Where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged." (1 Greenleaf on Ev., § 80.) The request to charge in this case involved, on the part of Rivinot, something more than a criminal neglect of duty, or fraud. If he voted without naturalization, the act constituted a misdemeanor. (1 R.S., 5th ed., 449, § 13.) The presumption against positive crime cannot be less strong *Page 75 than the presumption against fraud or criminal neglect of duty. The negative, therefore, which was involved in the plaintiffs' request, could not be presumed, but required to be proved by the party alleging it. (Williams v. East India Co., 3 East., 192, 199; King v. Hawkins, 10 Id., 216; Powel v. Milbank, 2 W. Bl., 851.)
I can perceive no difference between the present case and one where the right to vote depends on residence. In the case of theCommonwealth v. Bradford (9 Metc., 268), the defendant was indicted and convicted for voting at the general election in Boston on the 11th of November, 1844, when, as was alleged, he was not a qualified voter, not having resided in Boston the six months next preceding that election. It was proved that the defendant resided at Kingston until about the first of April, 1844, when he went to Boston, and entered into partnership there with the express understanding that he should make that place his residence: that he continued in Boston until the election, with occasional returns to Kingston, where his family remained until a short time before the election, when they removed to Boston. There was conflicting evidence as to his declarations and intentions respecting his domicil. The judge, at the trial, charged the jury that, as "the defendant's domicil was at Kingston, until he acquired one in the city of Boston, the burden of proof was upon him to satisfy the jury affirmatively, and beyond a reasonable doubt, that on the 11th day of May, 1844, he had changed his domicil from Kingston to Boston, and then dwelt and had his home in that city." Chief Justice SHAW, in delivering the opinion of the Supreme Court upon this point, said: "The court are of opinion that this direction was wrong, and that the burden of proof was still on the government, to prove that the defendant had no right to vote, and that he had not been an inhabitant of the city six months. This, it is true, is a negative proposition, difficult to prove, but necessary in orderto charge a party with a criminal offence." On that ground the conviction was set aside. In such cases the presumption in favor of innocence overcomes the presumption, which would *Page 76 otherwise arise, of the non-existence of the fact not proved. To rebut such counter and stronger presumption, some positive evidence to establish the negative is necessary. What that should be, must depend on the nature of the case. (Calder v.Rutherford, 3 B. B., 302; Phil. Ev., C. H. ed., 196.) The negative in regard to naturalization would ordinarily be much more difficult to prove than it would be in regard to residence, but the principle of both cases is the same. (Rex v. Rogers, 2 Campb., 654; Rex v. Twyning, 1 B. A., 386; Hicks v.Martin, 9 Mar. [1 Louis.], 47; 1 Cow. Hill's Notes, n. 325, p. 423.) Full and conclusive proof, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. (Calder v. Rutherford, supra.) The last request of the plaintiffs' counsel was, therefore, properly overruled.
The judgment of the Supreme Court should be affirmed.
EMOTT, ROSEKRANS, and BALCOM, Js., concurred.