(dissenting-). These are election contest cases for the offices of sheriff and cleric of Mississippi county, growing out of the general election of September 3, 1900, and both, being upon the same pleadings and the same evidence, substantially, only differing in some minor details, are both heard together.
The contestants narrow their allegations of contest down to Fletcher township only, while the contestees filed responsive allegations, but nevertheless took testimony showing fraudulent votes cast in favor of the contestants in the other townships than Fletcher, to the extent of 114 votes for sheriff and 116 for clerk, and of these there were received and counted for Lovewell 106 and for Bowen .8, which leaves 96 to he deducted from Lovewell’s majority o'f 177, received otherwise in these townships, making his majority only 81 instead of 177. And in the clerk’s election making the 112 majority of Rhodes only 14. If Fletcher township is to he thrown out, as held hy the court, both contestants are elected, — • Lovewell by a majority of 81, and Rhodes by a majority of 14.
■ I do not think the circumstances justify the annulment and consequent throwing out of the entire vote 'of Fletcher township, because I find from the -pleadings and the evidence adduced by the contestants, without considering the counterproof of the contestees, that the' true' vote cast in that township can be ascertained with reasonable certainty — at least approximately, which is all that can be required in a contested election, when all the evidence is derived from the bias of partisanship.
Voters whose votes are not challenged, and against whom there is no charge of fraud, or complicity therein, or of irregularities, ought to have their votes counted, if practicable, notwithstanding the fraudulent conduct of others, and thus be allowed a participation in the election of their county officers; and this right does not admit of carrying latitudinous and merely theoretical rules beyond the necessity which called them into action.
In McCrary, Elections, § 523, the author says: “The question, under what circumstances the entire poll of an election division may be rejected, has been much discussed, and conflicting views have been expressed by the courts. The power to reject an entire poll is certainly a dangerous power, and, though it belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested election case, it should be exercised only in an extreme case, that is to say, a case -where it is impossible to ascertain with reasonable certainty the true vote.”
The true vote in this case, in my opinion, is easily determined in that township, without resorting to the d&rnier ressort of throwing out the returns and the whole polls. And thus the true vote can approximately be determined, if not with mathematical certainty, which can seldom be ascertained in such cases.
The contention of contestants is that 110 fraudulent votes were cast in Fletcher township that should not have been cast for any one. The returns show by name that 271 votes were cast. This leaves 161 legal votes cast. There were no votes cast except for the candidates named as parties in this contest. Contestant Lovewell claims, and he shows by proof which he had to make, that he received 40 of these. This leaves 121 for Bowen, making a majority in that township for Bowen- of 81 votes, which would leave Lovewell in the whole county a tie vote or at most a bare majority of one. By the same calculation, Driver would have a majority of 65 or 64 in the whole county.
I think the judgment should have been affirmed; but since the case has been remanded on reversal, I do not dissent from this disposition of it, for I think the contestants, or at least one of them, is not elected, by any kind of concession of facts to them.