
    ELECTIONS.
    [Hamilton Circuit Court,
    October Term, 1885.]
    Cox, Smith and Swing, JJ.
    
      State ex rel. Hardacre v. Dalton et al., Canvassers of Elections.
    1. Duty of Canvassing Board.
    Where a canvassing board is about to do some act of a ministerial nature, which is in violation of the statute prescribing its duties, the court, before the result is fully declared, by mandamus may require it to proceed according to law. The fact that a mode is provided by which the election may be contested does not prevent the exercise of such jurisdiction ; nor is there any other plain and adequate remedy in the ordinary ' course of law. By no other judicial proceeding could this relator compel this board to discharge its legal duty or furnish him a certificate of election, if upon a legal and proper canvass he is entitled thereto.
    2. Authority of Canvassing Board.
    The statutory provisions that the “clerk and justices shall not receive any paper as a poll-book unless it be delivered by one of the judges of election held in such precinct, and in making the abstract they shall not decide on the validity of returns, but shall be governed by the number of votes stated on the poll-books,” are mandatory in their nature, and must be strictly complied with. Said board is not authorized to receive or canvass any paper as a poll-book unless so returned. When a return so made, is on its face substantially in accordance with law, it must be counted by them, though they may be satisfied that there was gross fraud in the election itself, or in the returns thereof as made to the clerk. And the court in a preceeding of this character can only require the board to canvass such returns so received in this manner. It cannot, any more than can such board, go behind such returns. All the court can do is to require the board to do what the law requires.
    3. Power of Court to Direct Omission of Returns.
    When it appears to the court that the board is canvassing as returns, papers which are not such, either in form or substance according to the statutes, or not returned to the clerk by a judge of the election precinct, the court may properly direct the board to omit them from the canvass.
    4. Counting the Votes.
    If the poll-book and tally-sheet show that the votes as stated in the tally-sheet are substantially more than the votes cast as given by the poll-book, no greater number of the votes on the tally-sheet should be counted than equals the number of names on the poll-book.
    
      5. When Returns Must be Received.
    To entitle such return to be received and canvassed by such board, it must be returned before the time fixed for the commencement of the canvass (six days), as the canvass is by fair interpretation of the law, to be made of the returns received at that time.
    
    6. What is Substantiae Compeiance or Statute.
    Where a return properly signed by two of the judges and one of the clerks, constituting a majority of the election board, is filed by one of the judges of the precinct in the clerk’s office, within the time allowed by law, it is probably a substantial compliance with the provisions of the statute. At all events the court not being clearly satisfied that it was the duty of the clerk and justices to reject it, they will not be required by the court to do so.
    Mandamus.
    
      
      See State v. Dalton, post, 93 ; 43 O. S., 652.
    
   Cox, J.

The relator in this case files his petition in mandamus, setting forth that at the October election, 1885, in the county of Hamilton, he, with three others, was duly elected by a plurality of the legal votes of said county to the office of senator to the general assembly. That the defendants, the canvassers, on the 19th of October began to canvass and abstract the returns of said election made to said clerk, in order to ascertain and declare the result of said election, but they have not yet abstracted all the votes of all the precincts in said county, nor have they as yet declared the result of said canvas and abstract, nor certified nor signed the abstract of said votes, nor deposited the same in the office of said clerk ; and he avers that defendants have failed to canvass and abstract the returns of said election according to law, and are still failing and refusing so to do. That they have canvassed and abstracted a large number of votes which do not appear on the legal returns of said election returned to said clerk, and credited the same to the Democratic candidates. To support this allegation, a number of specific acts are alleged on the part of the clerk and canvassers. Defendant has moved to strike out nearly all these specific averments, on the ground that they are irrelevant, immaterial, and furnish no ground for the relief asked, and this motion has been treated and argued by both parties as a demurrer to each and every specification, in order that upon the threshold of the case, the question of the jurisdiction of the court to grant the relief asked may be decided.

It is claimed by defendant, that mandamus will not lie to compel the canvassing board to count the votes and issue the certificate, as asked for, for the reason :

First, that the canvassing board in counting the votes and declaring the result, acts' as a quasi judicial body, and that it is the sole judge of what are and what are not legal returns, and that its decision cannot be controlled by mandamus; and, second, that the court cannot proceed by mandamus to examine into the-acts of the canvassing board and require them to count the votes and grant a certificate, because there was a plain and adequate remedy at law. That each house of the legislature was made by the constitution, article II, section 6, the judge of the election returns and qualifications of its own members. And by section 3003, Revised Statutes, the proper place to inquire into these irregularities was by contest in the senate.

Let us, then, inquire, first, what is the position of the canvassing board. Is it a ministerial or judicial body ?

We had supposed that this question was so well settled as no longer to be a subject of debate. The doctrine that canvassing boards and return judges are ministerial officers, possessing no discretionary or judicial powers, is settled in nearly, or quite, all the states. See McCrary’s Election Law, section 84, and cases there cited.

Their duties are purely ministerial, and extend only to the casting up of the votes and awarding the certificate to the person having the highest number , they have no judicial power. McCrary, section 81.

Our statute, section 2980 and following, fully sets forth their duties.

On the 0th day after the elecLion, or sooner, in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the returns made to his office and make abstracts of the votes in the following manner: '

First — Upon a single sheet-an abstract of the vote for governor and other state officers.

Second — And, upon another sheet, an'abstract of votes for governor and others.

Third — And, upon another sheet, .an abstract of votes for governor, state and other officers, and representatives and senators to the general assembly.

R. S. 2981. The clerk and justices shall not receive any paper as a poll book of any precinct unless it be delivered at the clerk’s office by one of the judges of the election held in such pr cinct; and in making the abstract of votes, they shall not decide on the validity of the returns, but shall be governed by the number of votes stated in the poll-books; and they shall certify and sign the abstracts, and deposit the same in the office of the clerk, By section 2982, after such deposit w’ith the clerk, he is required to make duplicate copies under the seal of his office, inclose and seal the same, and indorse a certificate of the votes for officers named in title of section 2980, and transmit the’ same by mail to the secretary of state at Columbus. By section 2995, the clerk is required without fail to give a certificate to any elected candidate on demand.

If these statutes were not clear as to the purely ministerial character of this board, the Supreme Court has put it beyond the possibility of a doubt in the case of Ingerson v. Berry, 14 O. S., 315, 322, and in the case of State ex rel. Campbell v. Foster, 38 O. S., 599, 603, where the court say, “We fully concede that the duties of the defendant (the convassing board) were ministerial in their nature.”

The second question is, can the court by mandamus examine into the acts of the canvassing board, and require them to correctly count the votes, and give a certificate to the person legally entitled thereto? By' section 6741., R. S., mandamus is defined to be a “writ issued in the name of the state to an inferior tribunal, a corporation, board or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Section 6742: And although it may require an inferior tribunal to exercise

its judgment, or to proceed to the discharge of any of its functions, it cannot control judicial discretion. Section 6744: “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of law.” That these defendants are a board having duties to perform which the law specially enjoins as a duty resulting from an office, trust or station, we think is clear, and the Supreme Court has said in the case of Ingerson v. Berry, supra, that they saw “nothing in the intrinsic nature of the duty, nor in the character of the office or station, to prevent the enforcement of its performance by mandamus in a proper case.” And so in the case of the State ex rel. Campbell v. Foster, supra, the Supreme Court, without in any way questioning this right so to do, proceeded to hear a case in mandamus against the governor and secretary of state, as the state canvassing board, on the vote for member of congress.

But it is claimed by defendant that mandamus will not lie, because there is a plain and adequate remedy at law afforded to relators by a contest before the senate. To determine whether relator has a remedy at law by contest, let us see what he demands by his petition. It is simply that defendants shall proceed to count the legal returns, and award a certificate to him if it be found on such count that he has a plurality of votes. This is not an application “to contest the right of a person declared duly elected to the office of senator,” for which section 3003, Revised Statutes, provides. It differs widely from a contest. If relator has received a majority or plura ity of votes, it is his right to have that declared and certified. It is the muniment of title to the office which he seeks, and not the office itself. It is made by section 24, R. S., the prima facie evidence of his right to a seat in the senate, and, until it is awarded to him or some one else, no contest can be instituted in that body. The awarding of that certificate is preliminary to all. or any proceeding in the senate. The senate, on a contest, cannot award it to him. Clark v. McKean, 7 Bush., 523. But the senate may award the office to him on proper proof, whether he has, or has not this certificate. If relator is entitled to the certificate, it should be given to him by these defendants, for it has a value of great importance to him, as giving him a key to the door of the senate, entitling him prima facie to the right to a seat, and if that right be contested then the burden of proof is upon contestant.

There is no adequate remedy, nor indeed any remedy at 1 iw, by which the relator can obtain this certificate (if the canvassers refuse to declare in his favor) unless it be the writ of mandamus so ordering. It in nowise interferes with the action of the senate in determining, either by a contest or otherwise, the election returns and qualifications of its members. There is, in fact, no Senate to organize until some persons, having certificates as the result of an election by the people, present themselves to organize th t body. And after its organization by those holding certificates of election, the senate may nevertheless go behind the election return and certificate, and determine that the holder was not elected, or even that, though elected, he was not qualified to hold a seat in that body.

We hold, therefore, that mandamus is a proper remedy to be resorted to, to compel the defendants to properly canvass, abstract and certify the returns of the election at which relator was a candidate, and if he has received a majority or plurality of votes, to so certify, and give him a certificate on demand. The doctrine, we think, is not controverted by any decision of the Supre ne Court of this state, but is in accordance with the principle announced by that court in the following well considered cases: Ingerson v. Berry, supra, State ex rel. Goss v. Randall, 35 O. S., 64; State ex rel. Campbell v. Foster (Governor) et al., supra.

This latter case is very suggestive. It was an application by James E. Campbell, who claimed to have been elected a member of congress from the third district, for the allowance of a writ of mandamus against Governor Foster and the secretary of the state, who are by law designated as the canvassing board, to compel’ them not to count certain votes in the returns from Clermont county given to H. U. Morey, and to compel them to award the certificate to him. The Supreme Court did not refuse to take jurisdiction on the ground that each house of congress was, by the constitution of the United States, the judge of the election, return and qualification of its members, nor for the reason that the law provided an ample remedy by contest in the house of representatives, but without any doubt, hinted or expressed against their jurisdiction, proceeded at once to hear and dispose of the question as one of which they had full jurisdiction.

But the motion in this case goes further than to the jurisdiction of the coiirt. It is to strike from the petition a large number of the averments, on the ground that they are immaterial, irrelevant, and furnish no ground for the relief sought.

Let us examine what these averments are, which are denominated immaterial, irrelevant, and as not furnishing ground for relief.

They are in brief as follows : It is charged that defendants, in canvassing the votes, are canvassing, abstracting and crediting to Democratic candidates votes from papers which are not the legal returns from precincts described, and which they have no authority by law to canvass as the legal returns; that in precinct A, of the fourth ward, the papers purporting to be returns are forged, altered and spurious, and do not represent the votes cast in said precinct, and said facts are evidenced on the papers; that the paper purporting to be a poll-book shows 654 names as having voted, whereas the tally shows that 996 votes were cast, and that defendants have canvassed and abstracted from said papers 996 votes as to the office of senator, for which relator was a candidate, of which they have given 926 votes to his opponents; that in precinct F, of the ninth ward, they have canvassed and abstracted and credited to the Democratic candidates 191 votes and 45 votes to the Republican candidates, from papers which are not the returns of votes cast at said precinct; that the paper purporting to be a tally-sheet contained no tallies, and no statement of votes for any candidate cast at said .election, nor was it signed by any of the judges or clerks of said election.

As to precinct E, of eighteenth ward, defendants have canvassed and abstracted as the votes cast at said election, and credited 215 votes for the Democratic candidates, and 117 votes for the Republican candidates from papers, which are not the lawful returns of said election; that the papers from which said abstract was made were not signed by the minority judge of the election, because of frauds at said election, and because the papers did not contain the true returns; that said papers were not returned to said clerk and delivered to him by one of the judges of said election in pursuance of law; that the vote cast at said election was canvassed on the night thereof by only two of the judges of said election, and when so canvassed or counted, the poll-books and tally-sheets were not delivered to the city clerk and county clerk as required by law, but the same, after-having been signed by the two judges and two clerks, were placed by them inside the ballot box, said poll-books and tally-sheets being without cover and not under seal, containing the ballots cast at said election, and which said box, having had the hiuges broken off the lid thereof, was thereupon tied with a rope and delivered to an officer of police, who conveyed the said box containing said poll-books and tally-sheets to the Central Police Station of Cincinnati; and said judges and clerks of said precinct, when they had thus signed said poll-books and tally-sheets and deposited the same in said box as aforesaid, thereupon adjourned without day, and without further order as to the disposition of said papers and returns. On the 19th day of October, 1885, one of the judges took the papers from the box and kept possession of the same, uncovered and unsealed, from that day until the 22d of October, when he placed the same under cover and sealed and delivered it to the county clerk.

As to precinct D, of the nineteenth ward, the allegations of the relator are, that defendants have canvassed and credited the Democratic candidates 233 votes and fifty-two to the Republican candidates, from papers which are not the lawful returns of said election ; that on the night of the election, at the closing of the polls, the judges and clerks of said precinct refused to proceed with the counting of the ballots cast at said voting place, and allowed the box containing said ballots to remain unopened, and instead of proceeding with the count of ballots cast, they abandoned the box and left it in the custody of parties unknown to the relator; that the following night, twenty-eight or twenty-nine hours after -the closing of the polls, the judges of said precinct returned to the voting place, and undertook to count the ballots cast at said election ; that the box, which was then at the voting place of said precinct, was opened, and the ballots therein counted by said judges and clerks, and the return made to said county clerk, is the return of the vote and ballots then foun d in said ballot-box ; but this relator denies that said ballot-box is the same that was used to receive the votes of electors on the day of said election in said precinct, and denies that the said ballot-box was in the same condition in which it was left at the closing of said election polls, and further charges that if the box was the same box which was used at said precinct the preceding day to receive the ballots cast, that the same had been tampered with, and a large number of votes placed therein since the closing of the polls on the night of election; that the said tally-sheets made at the time aforesaid and returned to said clerk show forty-three votes in excess of the number of votes cast at said election by the legal electors thereof, as shown by the poll-book of said precinct so returned to said clerk, which said excess of votes were fraudulently and unlawfully placed in said box, whilst the same was out of the possession of the judges, anti in the custody of persons unauthorized by law to have the same, and it is impossible to ascertain and determine the votes actually cast by the legal electors for the several candidates for the office of senator.

This truly formidable array of charges of official delinquency and criminal disregard of law, is by the pleading of defendants, for the purposes of this motion, admitted to be true, and the only answer is that they are irrelevant and immaterial, and furnish no ground for relief. We cannot conceive them to be such — if they be true, relief should be granted against.them, if in the power of the court. The duties of the defendants are plainly prescribed by law, and if these specifications set forth wherein they are violating these duties, they should not be stricken out.

What are those duties? Section 2980, R. S., provides that on the sixth day after the election, or sooner, in case the returns are made, the clerk of the court of common pleas, taking to his assistance two justices of the peace of the county, shall proceed to open the several returns made to his office, and make abstracts of the vote in the following manner, etc. “Section 2981 — The clerk and justices shall not receive any paper as a poll-book of any precinct, unless it be delivered at the clerk’s office by one of the judges of rhe electiou held in such precinct; and in making the abstract of votes, they shall not decide on the validity of the jeturns, but shall be governed by the number of votes stated in the poll-books; and shall certify and sign the abstract, and deposit the same in the office of the clerk.”

What are these returns ol election which they are thus to canvass and certify ? Not, certainly, any paper purporting to be a return which may have been left, sealed or unsealed, in the clerk’s office, by a judge of election or any other person. But their character is fixed precisely by the statute, and the very form given. It is a statement by the officers of an election to the clerk of the court of common pleas, in accordance with law, of the number and names of persons who have voted in a particular precinct, with the number of votes cast for each of the candidates for the respective offices. It consists of a poll-book and a tally-sheet.

The poll-book contains the names of all the persons who voted at the election, and these names must be counted and the number set down at the foot, and certified to by the signatures of the judges and clerks in the manner provided by the statute. The tally-sheet should contain the names of the person voted for, and for what office, and the number of votes given for each candidate; and this, too, must be added up, and certified to and signed by the judges and clerks. And the number of persons voting should correspond to the number of votes cast. The judges, by section 2961, sh dl, after so canvassing the votes, and before they disperse, put under cover one of the poll-books, seal the same, and direct it to the clerk of the court of common pleas, and one of the judges, to be selected by the others, shall convey the same to the clerk, at his office, within three days from the day of election.

As to some of these precincts, nearly all of these plain, easily comprehended rules as to a proper return of an election are charged to have been violated, and while the statute provides that no election shall be set aside for want of form in a poll-book, provided it contain the substance, these charges go not only to the want of form, but to want of nearly every substantial thing going to make a correct legal return.

Now, although the performance of the duties of the canvassers is ministerial, yet, as the Supreme Court says in 38 O. S., 604, State ex tel. v. Foster et al., “the performance of ministerial duties requires the exercise of intelligence, sense and judgment. Ministerial duties must be performed correctly, and the fact that a ministerial officer performed his duty according to his judgment is of no avail if his duties are not correctly performed ” “A duty not correctly performed is not performed at all.”

As a result from what has been said, we state the general principles decided by us as follows:

First — That where a canvassing board is about to do some act of a ministerial nature’ which is in violation of statutes prescribing its duties, the court, before the result is fully declared, may, by a writ of mandamus, require it to proceed according to law. And the fact that a mode is prescribed by which the electiou may be contested, does not prevent the exercise of such jurisdiction. Nor is there any other “plain and adequate remedy in the ordinary course of the law” for the evil complained of. By no other judicial proceeding could the relator compel this board of canvassers to discharge its legal duty, or to furnish to him a certificate of his election, if on a legal and proper canvass he is entitled to,it.

Second — That under the provisions of section 2981, Revised Statutes,“the clerk and justices shall not receive any paper or a poll-book of any precinct unless it be delivered at the clerk’s office, by one of the judges of election held in such precinct, and in making the abstract of the votes, they shall not decide on the validity of the returns, but shall be governed by the number of votes stated in the poll-book.” So far as regards these provisions, we' are of the opinion that they are mandatory in their nature and must be strictly complied with, and that the board is not authorized to receive or canvass any paper or poll-book unless so received. And further, that when a return is so made, on its face substantially in accordance with the law, it must be counted by them, though they may be satisfied that there was gross fraud in the election itself, or on the returns thereof as made to the clerk." [See dissenting opinion of Judge Cox.] And the court in a proceeding of this character can only require the board to canvass such returns so received in this manner, and that it cannot any more than can such board, go behind such returns. All we can do is to require it to do what the law requires.

Third — That when it appears to the court that such board is canvassing as the return papers which are not such, being neither in form nor substance such as the statute provides for, and not having.been returned to the clerk’s office by a judge of the election precinct, such action is in direct violation of the law and of the duty of the board, and the court may properly direct the board to omit it from the canvass.

Fourth — That if the poll-book and tally-sheet returned from any particular precinct, on their face show that the votes as stated in the tally-sheet are substantially more in number ban the number of votes cast, as given by the poll-book, that (at least) no greater number of votes on the tally-sheet should be counted than equals the number of votes on the poll-book. But inasmuch as great doubt exists as to what the law requires of the board in such a case, that is, whether the whole vote or return should be rejected, or if canvassed, in what manner it should be done, we do not now finally dispose of this question, but reserve it for further consideration.

Fifth — Section 2961 provides that after one of the poll-books is sealed and directed to . the clerk of the court, one of the judges shall convey the same to the clerk at his office within three days from the day of the election. And section 2980 provides that “on the sixth day after the election, or sooner in case the returns are made, the clerk of the court of common pleas,' taking to his assistance two justices of the peace of the county, shall proceed to open the several returns made to his office.” Whether a return made by a judge of the election after the three days fixed by law in which it shall be so returned, and before the time at which the canvass by-the terms of the statute is to commence, shall be canvassed by them, is not presented by this petition and motion, and, therefore, it is unnecessary to decide it. But to entitle such return to be received and canvassed by such board, it must be returned before the time fixed for the commencement of the canvass, as the same is, by a fair interpretation of the law, to be made of the returns received at that time.

Sixth — That when a return, properly signed by two of the judges and one of the clerks of an election precinct (they constituting a majority of the said election board), is filed by one of the judges of said precinct in the office of the clerk, within the time limited by law, this is probably a substantial compliance with the provisions of the statute. At all events, the court not being clearly satisfied that it was the duty of the clerk and justices to reject the returns so made and signed, they will not be required by the court to do so. State ex rel Goss v. Randall, 35 Ohio St., 64.

In the light of these holdings of the court, the motion of the defendants to strike from the amended petition are disposed of as follows :

First — As to' precinct A, fourth ward. This part of the motion is overruled on the ground that the allegations are that the poll-book from this precinct contained the names of but 654 persons, and that the board had canvassed 996 votes for the senate from that precinct, of which 926 were credited to all of the Democratic senators but John Brashears, who was credited with 926 votes when he had but 726 tallies; thus, according to the allegation of the petition, giving to ad of the Democratic,senators more votes than were cast at said election, as shown by the poll-book.

Second — As to precinct F, ninth ward, the allegations sought to be stricken out are substantially that defendants have canvassgd, abstracted and credited to relator 45 votes, and to the opposing candidates 191, from papers not the returns of the votes cast at said precinct at said election ; that the paper purporting to be a tally sheet contained no statement of votes cast for any candidate at said election, nor was the same signed by any of the judges or clerks of said election ; and that said defendants made said canvass and abstract as aforesaid, without having any tally-sheet returned from said precinct, or any statement of votes cast at said election, as required by law. Clearly, under the ruling we have made, if such action has been had by the board, it was illegal, and the court can require it to be corrected, and the motion as to this should be overruled.

Third — As to precinct 33, eighteenth’ward. The allegations as to this precinct, which the defendants ask to have stricken out, are, that the board credited 137 votes from said precinct to the relator and 213 votes to the opposing candidates. It is also alleged that many irregularities occurred in the counting of such votes by the judges; that the returns were placed by them in the ballot-box unsealed, and that the judges then adjourned, without any order as to the disposition of the returns; that on October 19, one of the judges took said papers from the box, placed the same under cover and seal, and delivered them to the clerk on the 22d of October.

Under the view we have taken of the law on this matter, many of the allegations of this part of the amended petition are in our judgment, irrelevant, and cannot be inquired into, and had the motion been confined to such points it would have been sustained. But as the allegation as to the time of the delivery of such returns to the clerk are material and relevant, and as the motion goes to the whole, it will also be overruled.

Fourth — As to precinct D, of the nineteenth ward. The allegations of this part of the petition are that the defendants canvassed fifty-two votes therefrom to the relator and 233 votes to the opposing candidates. It further charges that there were great irregularities in the counting of said votes, which, in our judgment, cannot be considered; but as it avers that the board counted for such officers from the tally-sheets forty-three votes in excess of the number of votes as shown by the poll-book, the motion as to this is overruled.

Fifth — As to the precinct F, nineteenth ward. The amended petition alleges that in this ward the minority judge and clerk refused to sign the papers returned because they were not the true and complete returns of the votes cast at said election ; and it further alleges that before the counting thereof, 103 votes had been abstracted from the box, and that there were many other irregular and illegal acts committed by the two judges. On the ground stated hitherto, we think no relief can be granted by the court in this proceeding on these allegations, and the motion as to this is sustained, but that these are questions to be settled on a contest of the election, should one be had.

Thomas McDougall, Drausin Wulsin, W. M. Bateman and B. P. Noyes, for relators.

John F. Follett and Isaac M. Jordan, contra.

Sixth — The motion seeks to have stricken from the petition all the allegations contained after line 204. These allegations are as to the counting by the defendants, in each of the precincts named, more votes from the tally-sheets than were shown by the poll-books, and for the reasons before stated this motion is overruled.

Smith and Swing, JJ. concurred.

Cox, J.

Cox, J., dissenting from a portion of, the decision, said: “ The majority of the court hold, that the canvassing board cannot reject the returns, though they may be satisfied that there was gross fraud on the returns as made to the clerk." From this portion of the decision I dissent. It is charged in the petition that certain papers purporting to be returns are altered, forged and spurious, and do not represent the votes cast at said election, and that said facts are evidenced by said papers.

If this be so, these are not legal returns, and it. would be the duty of the canvassers to reject and not count the votes on such a paper.

It is claimed that to do this would be going behind the returns, and deciding on the validity of the returns, which is interdicted by statute. But I do not so conceive it. Examining a return to see if it be a legal return, having the substance of a genuine return, is not going behind the return, but is simply examining into a return and rejecting a false return for a true one.

If a paper is presented as a return, and there is a question as to whether it is a return or not, they must decide that question from what appears upon the face of the paper itself. [McCrary on Elections, section 82.] They may judge whether the returns are in due form [25 Ill., 328], and they must act correctly. Not to act correctly is not to perform duty, [38 O. S.] But it is said they cannot “ decide as to the validity of the returns.” What is the meaning of the validity of the returns ? It certainly cannot be that they shall canvass any paper presented to them and certify it as a return.

In commenting on this section of the statute, the Supreme Court, in Phelps v. Schroeder, [26 O. S., 554], say : “The justices and clerk are not clothed with the power of determining the question of illegality or fraud in the election. Where, as in this instance, the poll-book on its face was in form and substance regular, the only duty was to abstract and certify the vote.”

The converse of this last proposition must be true, that where the poll-book on its face was not in form and substance regular, it was their duty not to count,

The true meaning of the statute in the light of this decision is that the canvassers cannot go back of the returns to ascertain whether the election was illegal or not: but they can and must decide whether the paper purporting to be a return, is the genuine and legal return of the officers of election.

An analogous case was decided in 65 Missouri. State ex rel. Metcalf v. Garsche, page 480. It was held that in a proceeding by mandamus, to compel a board of canvassers to count a vote as returned by the officers of election, when it appears that the alteration has been made in the return of the vote, but the canvassers do not know whether it was made before or after the return was delivered to them by the officers of the election, the circuit court will inquire and determine what the return as delivered actually was, and will compel them to make the count accordingly. In this case there had been an alteration in the figures of the return, and the canvassers answered that they did not know whether the figure had been altered before or after the return came to them, and so counted it as they found it. The circuit court, on mandamus, held that the court could take up the investigation and make the inquiry for them ; and having ascertained for them the right, would issue the writ against them ; and the court said, as the canvassers had no judicial eye, the court, through the medium of testimony taken for that purpose, will enable them to see, and advise them what to do; and the court found that the return had been altered after it came into the hands of the canvassers, and directed that they should count the true return and reject the forged one. This decision was sustained by the Supreme Court.

I cannot see that there is any difference in the forgery or alteration of a return before or after it came into the hands of the clerk. Suppose a judge of election, intrusted by liis fellows with the carrying of the true returns to the clerk, or any other person, should forge a false one and deposit it with the clerk as a substitute for the true. Can there be any reason why this should he counted by the canvassers, when, if the same person should get possession of the true one, after it got into the possession of the clerk, and alter it, the court would reject it? There is no safe rule except to require the canvassers to see that the true return is before them when they meet for the canvass; but if, upon its face, it bears the evidence of forgery or alteration, to reject it; *and if they do not, or are unable, or will not see the forgery, then the court should lend the judicial eye to detect the forgery, and, if detected, order the canvassers to reject it.  