
    Thomas S. Taylor, v. William P. Wallace.
    1. Under section 36 of tlie act to regulate the election of state and county officers (S. & S. 333) the declaration of the clerk and justices, showing who were duly elected, ought to be certified in writing; and the certificate ought also to show the day on which the declaration was made.
    2. Where the certificate shows the date at which the declaration was made, the time within which an appeal may be taken by a candidate or an elector, is to be counted from such date.
    3. If, taking the certificate in connection with the returns and abstract, there is no ambiguity or uncertainty as'to the date of the declaration, parol evidence, in the absence of fraud, is inadmissible for the purpose of fixing the time for taking an appeal.
    Motion for leave to file a petition in error to Reverse the judgment of the District Court of Hamilton county.
    Taylor and Wallace were candidates for sheriff at the October election, 1876, in Hamilton county.
    The clerk and justices whose duty it was to canvass the returns, found that Wallace had received the highest number of votes, and declared him duly elected. Taylor, intending to appeal, instituted proceedings in the court of common pleas to contest the election of Wallace.
    The indorsement of the clerk shows the notice of appeal to have been filed November 4, 1876.
    Wallace moved the court to dismiss the proceeding on the ground that notice of the appeal was not entered with the clerk within twenty days from the day of his being declared elected by the clerk and justices.
    On the hearing of the motion to dismiss, the counsel of Wallace gave in evidence a duly certified copy of the abstract of votes given at the ejection, and of the declaration of the result by the clerk and justices, authenticated by their signatures and the seal of the court.
    The certificate added to the abstract is in the following form:
    
      
      State of Ohio, Hamilton county, sí.
    “We, William M. Trevor, clerk of the court of common pleas, within and for said county, and F. H. Rowekamp,.and Frank A. Dossman, justices of the peace within and for said county, do hereby certify that the foregoing is a correct abstract of the votes given at the general election for state and county officers, held in Hamilton county, on the second Tuesday, the 10th day of October, a. ». 1876, and that” [here follows a statement in figures of the number of votes each candidate for state and county offices received], “as appears from the poll-books of said election of the several townships, wards, and precincts in said county, duly returned to, filed, and opened by us, and now remaining on file in the office of the said clerk. And we do hereby declare of such persons the following duly elected to the following offices, to wit:
    
    “ Three Judges of the Court of Common Pleas,
    
    A B,
    C D,
    E F.
    “ Two Additional Judges of the Court of Common Pleas,
    
    
      G I-I,
    JK.
    “ Clerk of Court of Common Pleas,
    
    L M.
    “ Sheriff,
    
    William P. Wallace,
    “ And we do further certify that the total number of votes given'at said election roas 55,501, as appears from said poll-books.
    
    
      “ Witness our official signatures and the seal of the said Court of Common Pleas at Cincinnati, in said county, this 14th day of October, a. d. 1876.
    [seal oe court.] “ W. M. Trevor,
    “ Clerk of Common Pleas of Hamilton,
    
    
      within and for said County.
    
    “ F. II. Rowekamp,
    
      “Justice of the Peace within and for said County.
    
    “F. H. Dossman,
    
      “Justice of the Peace within and for said County.”
    
      The counsel of Taylor offered in evidence the affidavit of the justices and the deposition of the clerk, to prove that the certificate was not made on the.day it bears date, but on the 16th of October instead of the 14th.
    The substance of the evidence offered was that the clerk and justices opened the returns on Friday, the 13th of October, and set down the number of votes for each candidate on the abstract. This work was completed on Friday. On Saturday the footings of the various columns were made under the supervision of the clerk, the "work being completed about five o’clock in the evening. The clerk ascertained the result on Saturday, and stated it. But neither of the justices was present, and no formal declaration was made.
    On Monday the certificate was made out in accordance with the footings as ascertained by the clerk on Saturday, and the result declared in the form above set forth, the certificate being dated and signed by the clerk and justices as of Saturday, the fourteenth.
    No other evidence was offered to impeach the certificate of the clerk and justices; and, on the objection of Wallace, the evidence thus offered was rejected by the court.
    Taylor moved the court to have the indorsement of the clerk showing the date of the filing of the notice of appeal corrected, so as to show that the notice was filed on the 3d of November instead of the 4th. •
    This motion was heard on testimony offered by both parties. The court found that there was no error in the date of the filing, and overruled the motion.
    Thereupon, it appearing that the notice of appeal was not entered with the clerk within twenty days from the date of the declaration of the clerk and justices showing Wallace’s election, the motion to dismiss the appeal was granted.
    On error, the district court affirmed the judgment of the court of common pleas dismissing the appeal.
    Application is now made for leave to file a petition in error to reverse both j udgments.
    
      
      Buck waiter § Campbell, Paxton <$• Warrington, and Warner M. Bates, for the motion,
    contended that the date of the certificate was not proof conclusive as to the time of the act nor of its signing; but could be corrected, for mistakes, by parol evidence. Ohio v. Walla han et al., 1 Tap-pan, 48; P/sher v. Butler, 19 Ohio, 406; Miller v. Hampton, 87 (1st select cases) Ala. 342; Mc( ombe v. Gilkey, 29 Miss.”146, 190 ; Draper v. Snow, 20 N. Y. 331-333; Tatum v. Goforth, 9 Iowa, 247; Robertson v. Maclin, 8 Hay (Tenu.) 71; Levant v. Rogers, 32 .Me. 159; Trafton v. h'ogirs, 13 Me. 315; A. Amer. Coal Co. v. Dyett, 4 Paige (N. Y.) 273; 55 N. Y. 525; 39 Ind. 605.
    
      The attestation, the writing out of the declaration, the dating of the same, are all surplusage. The statute does not require either of these things to be done in writing, and we claim, for this reason especially, that the needless, erroneous written date on the certificate can be disproved and corrected by the best evidence—the testimony of the canvassers themselves.
    
      Hoaclly, Johnson Colston, contra,
    claimed that by section 36 (S. & S. 383), the declaration of the clerk and justice is final and conclusive, unless within twenty days from the day of declaring, a notice of appeal is entered with the clerk of the common pleas. Steinberger’s Adm’rs v. Steinberger, 19 Ohio, 106; Iloogland, v. Sehnorr, 17 Ohio St. 30.
    • The law clearly contemplates that the declaration shall be in writing. Bergen v. Jones, 4 Met. (Mass.) 376.
   "White, J.

The only question in this ease we deem it necessary to notice is, whether the court erred in rejecting the evidence offered by the contestant, to impeach the certificate of the clerk and justices as to the time at which it appears from the certificate, they declared the result of the election.

The .time and mode of conducting elections are prescribed by stature; so also is the mode of contesting an election. The mode of contest is a necessary part of the system, in order to enable the true result to be ascertained and declared.

The right to contest an election is not limited to the candidates but extends equally to all the electors. It is, therefore, a matter of public concern; as much so as the election itself.

The election in question in this case is governed by the “ act to regulate the election of state and county officers,” passed May 3, 1852. S. & C. Stat. 532.

The same statute prescribes the time within which an election may be contested, and the mode of contest.

Section 20 of the act as amended March 28, 1864 (S. & S. 332); provides, that on the sixth day after the election (or sooner, in case all the returns shall be made), the clerk of the court of common pleas, taking to his assistance two justices of the peace, shall proceed to open the several returns which shall have been made to his office, and to make abstracts of the votes for certain officers in the manner prescribed ; and that the abstracts so made shall be certified and signed by the justices and clerk and deposited in the clerk’s office.

Section 21 provides, that the abstract of votes for the several county officers' shall be made on the same sheet as the abstract of the votes for the other officers named in the section; and declares that such abstracts, being certified and signed in the same manner as in the case of the abstracts provided for in the 20th section, shall be deposited in the clerk’s office.

In section 36, as amended March 28,1864 (S. & S. 333), it is provided, that the clerk and justices shall declare the person having the highest number of votes for probate judge, clerk of the court of common pleas, sheriff, etc., duly elected, subject to an appeal to the court of common' pleas, when an election is contested; provided, notice of such appeal to said court be entered with the clerk thereof, within twenty days from the day of declaring the person having the highest number of votes, as aforesaid.

Section 37 requires that the clerk shall make out for each of the county officers who has the highest number of votes, a certificate of his election and deliver the same to such person;on.demand; and that he shall also make out for any candidate or elector of his county an abstract of the votes,, upon being paid one dollar therefor.

Taking these provisions together, it seems clear that the certificate of election which the clerk is required to make out and deliver to the person elected, is a certificate of the declaration required to be made by the clerk and justices, under section 36, showing who were duly elected. This declaration must, therefore, have been made in writing and deposited in the clerk’s office with the abstract.

And as the time within which the right is given to any of the electors to contest the election is to be determined from the time of making the declaration, we think, also, the declaration ought to show the date at which it was made.

True this requirement is not expressed; but we think it is fairly to be implied; and what is implied from a statute has the same effect as if it were expressed.

If the certificate of the clerk and justices can be impeached by parol evidence showing that it was not made at the date it purports to have been, it would seem to follow that the impeachment might be made as well to defeat a contest as to support it. Hence, a party who had in good faith exercised the right to contest within the time allowed by law, as shown by the records of the election, might ultimately be defeated by parol proof that the result was declared anterior to the time shown by the record.

Keeping in view the public nature of the subject to which the statute relates, we have arrived, in construing it, at the following conclusions :

1. Under section 36 of the act, the declaration of the clerk and justices showing who were duly elected, ought to be certified in writing; and the certificate ought also to show the day on which the declaration was made.

2. Where the certificate shows the date at which the declaration was made, the time within which an appeal may be taken by a candidate or an elector is to be counted from such date.

3. If, taking the certificate in connection with the returns and the abstract, there is no ambiguity or uncertainty as to the date of the declaration, parol evidence, in the absence of fraud, is inadmissible for the purpose of fixing the time for taking an appeal.

It may be said that the rule excluding parol evidence puts it in the power of the clerk 'and justices, by fraud and collusion, to abridge the time allowed for taking an appeal.

Eraud is not to be presumed. A reasonable confidence in the fidelity of public officers lies at the foundation of all organized government.

In the present case no fraud is alleged; nor does it appear that any one was mislead by the fact of the certificate being dated on the fourteenth instead of the sixteenth of the month.

The object of dating the certificate ■ on Saturday, the fourteenth, would seem to have been to give effect to the work done by the clerk as of the day on which it was completed ; and which would have been the proper time to have made the certificate had the clerk and justices all been present.

The rule to be pursued in a case of fraud we leave for determination when the ease arises.

Motion overruled.  