The remedy for the contestation of the election of state and county officers is given by statute. Section 391 of the Code of 1871, applies to the case of county *33officers. The terms are, that the contestant shall file a petition before a justice of the peace, setting forth the grounds upon which the election is contested. Upon notice to the adversary, the justice shall cause an issue to be made up, and tried by a jury, and the verdict of the jury shall specify the name of the person having the greatest number of legal votes. If the verdict is against the person returned as elected, the justice shall issue a certificate, and he shall be commissioned by the governor.
The appeal to the circuit court, is to be tried de novo, and is not limited to a mere review of the proceedings before the justice of the peace. In passing judicially upon questions arising under the election laws, it has not been overlooked by the courts, that their entire machinery is to elicit an expression of the will of the electors, in the choice of officers. The duties imposed by these statutes are very often committed to men, (it may be said, is so, generally,) unlearned in the law, and unpracticed in business. Mistakes and irregularities will sometimes occur, and failure in a strict literal compliance should not surprise, much less vitiate the election, unless something so vital has been pretermitted, or some wrong so gross and palpable has been perpetrated, as to defeat the popular voice, and deprive a candidate of a substantial right. Such statutes ought to be interpreted with liberality, as providing a mode to ascertain the choice of the electors, as directing machinery to bring out and ascertain the vote. Nor should such omission of forms prescribed, or any irregularities on the part of those conducting the election, invalidate it, unless the effect has been to stand in the way of, and defeat, the- popular preference, or the production of satisfactory evidence of it. Judges do not overlook the fact, which is of common observation, that election day is often a time of excitement, induced by the great interest involved, the busy solicitations of *34candidates and their friends for suffrages; the arts and schemes to influence votes; the tension to Avhich the sentiments and occasionally the passions of men are aroused, by the magnitude and importance of an issue, to be decided in a few hours of time. And, therefore, they accept the ordinary experience and reason, as supplying the tests, by which such occasions are to be judged of. They will not construe the overzeal of candidates and their special friends for success; the conflict of opinion and preference, sometimes culminating in a breach of the peace, as such intimidation and violence that would necessarily avoid the election. (( The fundamental principle to which the judiciary look, is whether the election has had a termination, according to the wilLpf a plurality, or majority of those qualified to vote.;-
Irregularities of the officers of election, such as not being properly sworn, not being de jure appointed, or qualified, having no other right than being de facto incumbents, a failure to appoint subordinate assistants, such as a clerk, securing votes, after the outer door of the room had been closed, from those who remained within, (voters not being thereby deprived of their rights,) or other failure to follow the law, will not vitiate the election. The people who are electors, should not be deprived of the benefit of their votes, because those whose duty it was to hold the election, were ignorant, incompetent, or wilfully failed in some particulars to do their duty. (Nor should the successful candidate lose his office, becáuse of the misconduct of these officials, if he is free from complicity with them, and has not the office reason of such misbehavior.'
If the election was held at the proper time and place, ^and under the supervision of competent persons, irregularities which concern merely the form of conducting it will not avail; it must be shown that legal votes have been rejected, or illegal votes have been received, and *35that because of the one or the other, or both, the result does not conform to the will of the voters, or uncertainty has been cast upon the result. People v. Cook, 14 Barb. 259 ; 8 N. Y. 67 ; People v. Bates, 11 Mich. 363.
If the objection be that one of the inspectors was disqualified (as being a candidate), and the others are qualified, this1 is sufficient. People v. McManus, 34 Barb. 620. Nor is the objection good that the ballot-box has not been locked and sealed as prescribed by the statute. People v. Higgins, 3 Mich. 233.
Some designated persons must, at the time, determine as to the qualifications of those who offer to vote. Many of them will be unversed in the law, taken from the ordinary, non-professional occupations of life. Errors of judgment, in the rejection of legal votes, and the acceptance of illegal ones, may be expected, and would occasion no surprise. The common judgment of men would concur, that for such errors the election should not be set aside, unless upon their rectification a different result would be obtained. Such, under various states of case, has been the concurring judgment of the courts. Ex parte Murphy, 7 Cow. 153 ; Parish of Ludbery v. Stearns, 21 Pick. 148 ; People v. Cicotte, 16 Mich. 283. So, too, if the objection be that violence and intimidation was displayed at the polls, it must he of so serious a character as to intimidate legal voters, and interrupt and prevent their voting. The freedom of the election must be broken up. A casual affray, a riot suddenly occurring of temporary duration, are not a valid objection, if there was, notwithstanding, an opportunity to the electors to cast their ballots. 21 Pick., 148, supra. Such disturbances must go to the extent of infringing upon the freedom of choice, and defeating the popular will. Therefore a failure of election in one precinct for such cause, or such disorder and violence as would prevent the returns from a particular *36precinct, would not vitiate, unless it could be shown that if the poll had been opened and the election had, on the return made, a different result would have been reached. Ex parte Heath, 3 Hill, 42 ; 21 Pick. 148. It is impossible to consult the adjudications upon the delicate subject of the contestation for offices determinable by popular election, without securing a strong impression of the practical wisdom upon which the judgments repose. The law is framed to the end, that every elector, however humble, may vote according to his will; so that the result may be the fair and free manifestation of the aggregate will of the majority, or plurality of the electors. Therefore those designated to hold and supers intend the election, are, for the occasion, by law, conservators of the peace, and authorized and specially instructed to preserve order, and arrest all disturbers of the peace. No failure of duty, which is no more than an irregularity, on the part of registrars, inspectors, or canvassers of the ballots, shall stand in the way of the popular verdict. /The substantive thing, designed by the law, is to ascertain the popular will; when that has been pronounced, its purpose has been accomplished^ These elections bring out the community ; the good and the bad, the orderly and the disorderly, commingle in close contact. The occasion is availed of sometimes by the lawless, for sinister and wicked purposes, to create disorder and tumults. It may be the wise policy, to turn over these brawlers and disturbers of the public peace, to be. tried and punished by the criminal laws, rather than to make it the occasion of calling in ques-? tion the validity of the election. Nor should it be allowed to work that great mischief, unless it appears that legal voters were deprived of their suffrage ; and that to the degree of bringing into doubt the freedom of the election, so that the popular will has probably failed.
The statute requires that the specifie grounds of objection to the election shall.be stated. .It will not suf*37fice to state general objections, as that it was illegal, or fraudulently conducted; the particulars must be set out.
It is said that it was error to rule out the testimony offered on the trial. If it was relevant, and tended-to prove the issue for the contestant, it was so. The court ought not to control the order of the adduction of testimony. But if the matter offered went merely to prove an irregularity in the registrars, inspectors, or canvassers, some omission to follow the letter of the law, in a matter directory merely, its admission would in no wise help the contestant. It was incumbent on him, in order to overcome th & prima facie case, which the certificate of the canvassers of the ballots created, to show that illegal votes were given to Ramsey, or legal votes excluded from himself, or some other reason, which would establish that he was entitled to the office. The conduct of the canvasser, who withdrew for a time some of the ballots from the box, was most reprehensible and disgraceful. If the offer had been to prove, that whilst thus in his possession, they were altered to the contestants prejudice, or otherwise tampered with, lost or destroyed, to his injury, the testimony would have been admissible.
The statute seems to confine the inquiry to the question of who received a majority of legal votes. The testimony offered would not, nor would all of it, prove that issue for the plaintiff in error. Without referring to each several offer of testimony, we remark, only on those which have'the most semblance of relevancy. The second was testimony on the point “ that the election was conducted in a disorderly manner, and the boxes were not kept, and the returns were not made, according to law.” It was not suggested that the disorder prevented any man from voting, by whom it was created, or in what it consisted. The election may have been conducted in a disorderly manner, and yet its purity and freedom not necessarily be infringed upon. It was not *38proposed to prove in what particular the law was departed from in keeping the boxes, nor in what the returns did not conform to law.
Third. It was offered to be proved that one of the registrars, being intoxicated, took a portion of the ballots in a handkerchief, away from the other registrars, and did not return them until next morning. That did not tend to prove that the plaintiff was entitled to the office; because it fell short of showing that any of the ballots had been lost or altered, or that the plaintiff was injured thereby, more than any other candidate, or that he was affected thereby in1 any manner. It was not pretended that the registrar, thus shamefully misbehaving, Avas instigated by the motive to defraud the plaintiff of his election. It would rather seem to be a drunken, meaningless freak, not specially referrible to one candidate more than another.
The fourth offer was, “ that at many of the precincts, many persons were permitted to vote without producing certificates of registration, and that the certificates were not marked ‘ voted.’ ” To this it may be answered that it was not indicated for whom these persons voted, or by purging them out, the plaintiff Avould have had the “most legal votes.” But is the proposition of illegality true ? Section 373 of the election law, Code of 1871, is: “ Registration shall in all cases be prima facie evidence of the right to vote, and on the day of election no person shall be challenged in his right to vote, (at the polls,) excejst for identity.”
The theory of the plaintiff was, that omissions and irregularities, and errors of judgment by those charged with registration, holding the election, and canvassing the ballots, would make the election illegal, and demonstrate that Ramsey had no title to the office. Hence his several offers to make proof on these points, the circuit court disagreed with him, and ruled that the test of his right under the issue was, whether a majority *39of legal votes preferred him for the office, and therefore he must prove that qualified voters were rejected, and illegal ballots received, which would change the result. Also, that such disorder and tumult prevailed as interfered with the voting, and prevented balloting to that degree as to vitiate the election. That the errors, irregularities, etc., on the part of the officers, did not make the election void, and could not have the effect of vitiating the choice made by the electors. We think the views of the circuit judge were substantially correct, and affirm the judgment.