The people on the relation of B. A. Snodgrass filed a quowarranto petition to determine by what right Thomas S. Marshall held the office of alderman of the second ward of the city of Salem. In answer to the petition, two pleas were filed. The first plea set up in substance, that the city of Salem was acting under a special charter, Vol. 1, Acts 1865, p. 507, which by Sec. 6, Art. 2, invests the city with the power to judge of the qualification, election and returns of its own members and with the power to determine all contested elections held under the charter; that on the 8th day of April, 1890, an election was duly held in said city for alderman of the second ward, at which, as returned by the election officers, the relator and himself each received thirty-four votes; that on the 9th day of April thereafter, the council opened, read and canvassed the returns, which showed the same result; that thereupon he at once notified relator that he would contest the election and then and there filed his petition with the council for a contest, on the ground that there was not a tie on the legal votes cast, but that on the contrary he had received a majority of such votes, because one Thomas Cunningham who had voted for Snodgrass at said election was not a legal voter in said ward; which petition was answered by relator and on the 14th day of April, 1890, the city council heard the evidence on said contest and on the 17th day of April decided and declared that the vote of said Cunningham was illegal and that the vote at the said election was not a tie vote as returned by the judges of the election, but that the defendant had received a majority of all the legal votes cast, and declared the defendant duly elected as alderman of said ward, whereupon he took the oath of office as required by law and has since held said office under that right. The second plea did not set up the contest before the council but in substance, that the election was regularly hold, at which sixty-seven legal votes were cast, of which he received thirty-four, which was a majority of all the legal votes cast; that returns were duly made to the council, which canvassed the returns and declared the defendant duly elected, whereupon he took the oath of office, entered upon his duties, and by that right has continued ever since to perform them. A genera] demurrer was filed to both pleas and sustained by the court. The defendant elected to stand by his pleas; thereupon judgment of ouster was entered against him, to which he excepted and appealed to this court.
From the tenor of the arguments it appears that the demurrer was sustained on the ground that the returns having shown that the vote was a tie, it became the duty of the council to call another election and that it had no power to hear evidence and determine which one was elected; that the duty of the council was declared by Sec. 11, Art. 2, of said charter, which provides that, “Whenever there shall be a tie vote in any election for alderman, a new election shall be ordered forthwith.” This construction ignores Sec. 6 of the charter, which provides that the city council shall judge of the elections and returns of its own members as well as “ determine all contested elections under this act.” The city council’s power, by this section, is not limited to the merely formal act of mathematically determining whether or not the additions of the election officers are correct.
Its power is greater than that of a mere canvassing board. It can look into the election and determine for itself whether or not the returns are expressive of the will of the legal voters; the power to judge of the election of its members implies, necessarily, the power to investigate and determine whether the prima facie or apparent facts, as disclosed by the returns, are the real facts. This power, under Sec. 6, is commensurate with that given by the Constitution to the Legislature of this State, to judge of the election of its members, as see Linegar v. Rittenhouse, 94 Ill. 208.
To hold that a tie vote produced by fraud, ipso facto forces another election, is to put a premium on fraud. It is not meant by what has been said that the council can - act arbitrarily and without investigation in the absence of the' interested parties, judge the returns to be false and declare a result contrary thereto, but that a city council clothed with the power given by Sec. 6 can investigate and then judge of the real facts developed by that investigation as to who is-elected, and are not absolutely concluded by the face of the returns. To hold otherwise would be to annul the statute giving the council the power “to judge of the election and returns of its own members.” If this power is only limited to a contest to be prosecuted by the defeated party, then if such party would not prosecute, the body would be powerless to protect itself from the presence and participation of one, in its proceedings, who might have been elected by the most notorious frauds. Because such a power is liable to abuse, is not a sufficient reason for denying or refusing to allow it to be exercised. All power is liable to be abused.
Had the council determined on this investigation that the votes cast for the relator were all legal, then the result of the election would have been declared a tie vote and a new election ordered as required by law. But before taking that action, the council determined to investigate the question formally raised before it, and it is immaterial whether the proceeding was called a contested election or not. The averments of the first plea show that it was regular; that all interested parties had full opportunity to be heard, and as it is believed, the action taken by the council was within the legitimate scope of its express authority. The second plea did not set up the full proceedings, but was sufficiently explicit as an answer to the petition, which was general in its terms. ' Ho reason is perceived for sustaining the demurrer to this plea.
The demurrer should have been overruled as to both pleas.
The judgment of the Circuit Court will be reversed and the cause remanded.
Reversed and remanded.