
    The State ex rel. John R. Donaldson vs. Meekin Townsend.
    It is no ground to arrest the election of a Sheriff, and to ej ect him from office, hecause the election at one of the polls in the district was managed by one manager, assisted by another appointed by the Senator, under the Act of 1828, p. 39, without any objection being made to the appointment on the part of the representatives.
    Before Richardson, J., at Marlborough, April Term, 1837.
    Motion for an information in the nature of a quo warranto, requiring Meekin Townsend to show by what authority he holds the office of Sheriff.
    An election was held for Sheriff of Marlborough, the second Monday of January last; at Brownsville, one of the places of election, the poll was *managed and conducted by one manager, originally appointed, and one appointed by the Senator alone, the other representative being out of the district. By including the poll at Brownsville, Townsend was elected; exclude the poll and he was not elected. There are in Marlborough six places of election, and three managers at each place. On the Thursday after the election, twelve of the managers met at the Court House, counted the votes, including the votes taken at Brownsville, declared Meekin Townsend duly elected, and gave him a certificate. Afterwards, on the same day, and before the hour of four o’clock, P. M., John R. Donaldson, one of the candidates, protested against the election in writing, on the ground that the election at Brownsville, being managed and conducted by only one manager, was illegal and should not have been counted.
    Seven of the twelve managers who counted the votes and declared and certified the election, certified that they believe it was illegal and should be set aside. Townsend sent his certificate of election to the Governor and was commissioned Sheriff. The holding of the election by only one manager was a mere irregularity, of which the managers were the proper judges. They counted the Brownsville poll, and their decision is conclusive. The objection to the certificate of the managers was, that the poll at Brownsville should have been holden ; it was illegally managed, therefore void. But I considered it, at most, an irregularity, within the jurisdiction of the assembled managers, and their decision conclusive. The election had been fairly conducted at the place and in the manner directed by the Legislature. The appointment of one manager by the Senator, unobjected to by the Representative, was competent. The object of the power given to the Senator and Representative is remedial of a frequent inconvenience (of the absence of one or more of the original managers,) and to ensure a fair election. This object is to be chiefly regarded. I did not perceive, that, even had the poll been holden by one manager alone, that it would have been utterly void, (though irregular,) so as to place the respondent in the situation of an usurper of office, and authorize this Court to arrest his commission. Such irregular poll would have been the consideration of the managers, not for this Court.
    See Cheves, 267; 2 Rich., 6. An.
    
    GROUNDS OF APPEAL.
    Because, from the facts of the case, information in the nature of a quo war-ranto ought to have been ordered.
    
      Graham, for the motion. Mr. --, contra.
   Curia, per

Richardson, J.

The election of sheriff was given to the people by the Act of 1808, 2 Brev. “ Sheriff,” sec. 71. To be managed as the election of Senator and Representatives. The managers of the polls are to declare the result of the election, and .certify it. Upon their certificate, the Governor gives commission to the successful candidate, and he goes into office. Under all the evidence of office which I *have referred to, Mr. Townsend presents himself as the rightful incumbent. Is he to be ousted ? It has been decided, in the case of the State vs. DeLesseline, (2 McC. 53,) that it takes a majority of the managers of all the polls to count the votes and declare the election. And it is now urged, that no less than a majority of the managers for each poll are competent to hold it. But we know that the House of Representatives have upheld as a member, the candidate who received a majority of the votes, including a poll so holden by one or two or more managers. Such a legislative decision is imposing authority, when we consider that Sheriff’s elections are ordered to be holden and managed as elections for the Legislature. To this authority we may add, that a distinguished judge has said, in the case of the State vs. Huggins (State Rep. 139,) that one manager may hold the election. And I should therefore hesitate to say, there being no other objection, that in such case the election would be utterly void. This is the judicial province. We may arrest the certificate and commission, if they infract the law or the constitution of the State. The judges are to see that no usurper of office shall keep it ; the rest is within the legal jurisdiction of the managers and the Governor. But there is no necessity for deciding absolutely upon that point. By the Act of 1828, p. 39, the delegation of each district is authorized to substitute managers of polls, in cases of vacancy. And in the instance before us, the Senator of the district, in the absence of the single Representative, filled up the vacancy of one of the original managers ; and this appointment is not objected to by the Representative. In such a case, when the proper object is merely to ascertain the true vote and appointment by the people of their officer, and that purpose has been answered, as we are assured by the certificate of the managers, I can scarcely call it an irregularity. But assuredly this manner of holding the poll to receive the votes, has infracted no plain rule of law or the principles of the constitution, to justify this Court to arrest the election, and eject the incumbent from his office.

The motion is-therefore dismissed.

Butler, Earle, and Evans, JJ., concurred. 
      
       5 Stat., 569. An.
      
     
      
       6 Stat., 94, § 2. An.
      
     