
    John Powers v. Norton Reed et al.
    
    1. Under the provisions of the Code, the district court has jurisdiction to review on petition in error the proceedings of the court of common pleas, under the “ act to authorize a contest of cases in which the removal of the seat of justice of a county has been submitted to a vote of the electors.”
    2. The ‘ ‘ final OTder or certificate ” made by the court, and entered of record as required by that act, is “ an order afEecting a substantial right made in a special proceeding,” within the meaning of section 512 of the Code, and is a final order within the meaning of section 513 of the Code.
    3. Although questions of fact, in proceedings under said act, cannot be brought in review by exceptions under the fourth section of the “ act to relieve the district courts,” etc., passed April 12, 1858 (S. & C. 1155), exceptions may be taken, under the Code, to the decisions of the court upon matters of law, and thus, through a petition in error, bring in review the decisions of the court upon questions of law arising in the case.
    4. Where in such contest the decision of the court is adverse to the “ contestee,” who is a party to the record in the case, he is a proper party to prosecute a petition in error to reverse such decision.
    5. Where the poll-books, tally-sheets, and returns of such election substantially comply with the statutes under which it is held, and all formal mistakes and omissions are supplied by the evidence filed in the case, and when taken together they clearly tend to show the result of the election, the court cannot properly exclude from its consideration such poll-books, tally-sheets, and evidence.
    6. Where the statute submitting the question of removal of the seat of justice to the vote of the comity, provides that the abstract of the returns oí such election, shall be recorded, and that such record “ shall be taken and received as legal evidence for all purposes of the result of said voting,” it is error on a contest of such election to find, that the result is contrary to that evidenced by such record, upon the vote cast in some of the townships only, without finding any illegality affecting the election in the other townships other than that the vote cast therein “cannot be judicially ascertained. ”
    7. The decision in Peak v. Weddell, 16 Ohio St. 271, sustaining the constitutionality of the act to provide for the removal of the seat of justice of Wood county (63 O. L. 58), is approved.
    Error to tbe district court of Wood county.
    Tbe facts are sufficiently stated in tbe opinion of tbe court.
    
      R. P. Ranney for plaintiff in error:
    Tbe district court erred in giving its judgment:
    1. It had no jurisdiction. No petition in error bas been provided for reviewing sucb a proceeding.
    Tbat court bas no appellate jurisdiction, except sucb “ as may be provided by law.” Art. 4, sections 2 and 6 of tbe constitution.
    No law bad ever conferred sucb a jurisdiction upon it, unless it is done by section 513 of tbe Code. By tbat section it is authorized to review tbe judgments or final orders of tbe court of common pleas. As it cannot be pretended there was a,judgment to review, was there a final order, in tbe sense of this section %
    
    Section 512 defines tbe final order which may be tbe subject of review: 1st. An order affecting a substantial right in an action, which in effect determines tbe action, and prevents a judgment; 2d. An order affecting a substantial right made in a special proceeding; 3d. An order made upon a summary application in an action after judgment.
    As tbe first and tbe last are out of tbe question, there being no action in which a judgment could be prevented, or a summary application after it had been rendered, was it a 
      special proceeding in which an order affecting a substantial right of the defendants was made ?
    A special proceeding, within the meaning of this section, is defined by this court in Watson v. Sullivan, 5 Ohio St. 42, and by sec. 604 of the Code, as a “ special statutory remedy, not heretofore obtained by action.”
    I insist that the proceedings upon such a contest are not within the appellate jurisdiction of the district court, as conferred by section 513, because: 1st. It is apparent from the act allowing it, that no such review was intended; 2d. The power conferred by that act is not necessarily to be exercised by the court of common pleas, whose judgments and orders alone the district court has power to review; 3d. No final-order, in any proper sense, was authorized to be, or was in fact, made by the court of common pleas.
    Sec. 21, art. 2, of the constitution, provides: “The general assembly shall determine by law befox*e what authority and in what manner the trial of contested elections shall be conducted.”
    No gx-ant of this power is made by the constitution to the judiciary ; it is a power in its nature political or administrative,' and it might, therefore, be conferred upon any officer or political body (as it has in respect to all State officers), as well as upon the judges of the courts.
    Until the act of April 18,1857 (54 O. L. 229), no general law had been passed for contesting elections of this description.
    The legislature designed this to be a speedy, summary proceeding — a re-canvassing of the votes by the designated “ axxthority,” with simply larger power’s than the original canvassers. There is no intimation that they intended it to be protracted by appeals, or to make the adoption of the law depend upon th<ifinding of any other “authority” than that which is expressly authorized by the law to hear finally and find conclusively. It i’elates to a purely public matter, into which, by no possibility, can any individual, legal light, enter. In no proper sense can it be said to have individual parties. An elector may promote it, ’being responsible for the costs, and a citizen may oppose it without any responsibility whatever. But each is allowed to intervene in apublic matter, for the better settlement of & public question, and the latter certainly neither gaining nor losing by the result.
    The power is not alone conferred upon the court of common pleas. In obedience to the constitution the legislature has designated an “authority” to perform this public duty as well —not a court, nor all the judges who have jurisdiction to hold the court, but thq judge of “ the sub-district in which said county is situate.” In vacation of his court he may hear the contest, and find the facts, certify to them, and have them entered upon the records. He is simply designated by his office, as the sheriff, clerk, or auditor might legally have been ; and if they had, their finding would have been as near a judgment or final order of the court of common pleas, as his acting out of his court, and under the designation of judge. It is no answer to say that this business was done in court. So absurd a construction will not be put upon the statute, as to say if it is done in one way it is final, and the other reviewable.
    . Put again, no final order, or order of any kind, was authorized to be made, or was in fact made. K finding of facts is authoi’ized, and the law has made this finding coxxclusive evidence of the adoption or rejection of the law. It may be truly said to have ended the proceedings. If proceedings may be ended short of a final order, it may be proper for the legislatux*e to provide for reviewing them; but it is certainly improper to usurp such a juxisdiction until it has been conferred.
    The very term “ order ” imports at least a written direction, either pending a proceeding, or at its conclusion, for something to be done; and this is the very definition of the Code. To make it reviewable it must also affect a substantial right of the party complaining against it. The fact is, the more the subject is canvassed the more apparent it is that the petition in error of the Code was only intended as a civil x’emedy between party and party for redress of private x-ights, ■ nd was never intended to reach those public, political, or administrative proceedings which it is often found necessary to provide for.
    No decision of this court, so far as I know, militates against the position I have taken. The only county seat case coming here upon petition in error is that of Noble v. Commissioners of Noble County, 5 Ohio St. 524. No objection appears to have been made to the jurisdiction, and the order and decree below were affirmed. The contest there was provided for in the special act. The commissioners were also parties to the proceedings in review.
    The contested election cases for county officers have no bearing upon the present case. In all of them the valuable, personal right of one of two persons to an office was the subject of controversy; the jurisdiction was vested in the court of common pleas, which was “to hear and determine the contest;” and this was done by the order of the court ousting an incumbent, or excluding a claimant from it.
    2. But suppose the district court had jurisdiction to entertain the petition in error, what errors “appearing on the record” justified the reversal of the findings of the court of common pleas ? To answer this question we must find what properly belonged to the record of that court. The law put nothing there but thejmdmgs of the court or judge. They were to be certified and entered “on the records of said court.” The depositions were to b % filed in the office of the clerk, but that did not make them records.
    But there was brought into the district Court what is called a bill of exceptions, professing to embody all the evidence.
    There was not the slightest authority-of law for bringing the testimony upon the record, or for the district court reverse the findings of the court below upon the facts.
    I need not refer to the numerous decisions made in thisconrt holding that the Code gave no such right; did the act of April 12th, 1858 ? (55 O. L. 82). Manifestly not. The act extends only to actions, tried upon regular issues to the jury,, or, a jury being waived, to the court; and the only exception which will bring the facts under review is the exception to the order of the court refusing a new trial. But the motion-for a new trial does not belong to the nature of the proceeding, and of course the court did not err in refusing to grant it.
    All the jurisdiction, power, or authority which the court had in this matter was given by the statute providing for the contest, and as that gave no right to a new trial, or other reexamination of the facts, none existed, and the court had no power to award anything of the sort.
    The bill of exceptions, therefore, is no part of the authorized record of the proceedings, and should be disregarded.
    But, suppose that it is; and suppose the Code petition in error extends to such a proceeding, yet it is expressly declared in the statute giving the power to review and reverse final orders, that they shall have injuriously affected “ a sub' stantial right ” of the party complaining. The Code, secs. 138, 295.
    And this court has uniformly held, that, “ In order to justify the reversal of a judgment on error, the record must •■affirmatively show, not only that error intervened, but that •■the' party seeking to take advantage of it is prejudiced.” Scovern v. State, 6 Ohio St. 288.
    The findings of the court of common pleas were reversed ■upon the petition of Norton Eeed and Gilbert J. Eogers, ■citizens of Wood county. No judgment or order was or could have been made against them. They are mere uninjured volunteers. The whole proceeding purely public, into which no primate right enters.
    But suppose I am wrong in all that I have said, except lhat the district court had no power to review the findings ■of the court below upon the evidence, still there is no error in the record.
    The district court, acting upon the findings of the court ■off common pleas, must act, if at all, upon the very same material and the very same questions as that court was bound .to act upon, and it could in no way disturb the findings of >that court without ascertaining that, upon the evidence (before it, its findings should have been different. I have given my reasons for thinking that this was outside of any legal capacity given to the district court.
    But suppose, again, that I am all wrong up to this point: I then insist that the act under which all these proceedings were had is unconstitutional and void. I • have given the reasons upon which I base this opinion in the case of Peck v. Weddell, already decided by this court. I present a copy of that argument with this. Upon the question argued in that case, the court has expressed no opinion. On the part of the plaintiff, it was argued that the 5 th section had never been submitted to a vote; that it constituted a part of the 1cm for the removal of the county seat, and that this section occupied such a place in the law as to make the whole act invalid, without the approval of the electors. For the defendant, it was admitted that this section had never been submitted to a vote; but it was contended that it was unnecessary, and that it might be enacted into law by the single action of the legislature.
    The court, however, took a different view from both, and held that it had been submitted to a vote. They say: “ These words, (as hereinafter provided? clearly refer to the provisions of the second and fifth sections, and thus, by reference, incorporate those provisions into the first, so that its adoption necessarily implies an approval and acceptance of the terms and conditions to which it refers.”
    I most respectfully ask the court to consider whether this conclusion was not too hastily adopted.
    
      James Murray, also for plaintiff in error:
    1. The judgment of the district court, as appears from the record, was predicated upon the finding in the court below, that the number of votes cast against removal in certain enumerated townships “ could not le judicially ascertained;” and upon this predicate, that court went on to presume that the judgment in the court of common pleas was rendered on the ground of the non-admissibility of parol testimony to supply defects in the poll-books. To do this, it is apparent that the district court must have presumed: 
      Fi/rst, That the number of votes cast for and against removal could not be judicially ascertained because of defects in the poll-books. Second, That parol or other testimony was duly offered to correct such alleged defects. Thi/rd, That such testimony, when offered, was competent for that purpose and, Fowth, That, if competent, it was also sufficient.
    Now, nothing can be more clearly settled than that the district court could not presume anything, for the purpose of reversing the judgment of the court of common pleas.
    2. But if evidence such as the court had to presume bo exist was in fact set out in the bill of exceptions, and if the bill of exceptions had been attached to the record under examination in the district court, yet nothing seems to me clearer than that it was not within the power of the court to have examined it, because it could not by any possibility constitute any portion of the legal record. To enable the court to review the evidence in any case, it must be founded on alleged error in the action of the court below, in overruling a motion for a new trial on that account. That this was a proceeding in which such a motion could be made or entertained, is too manifestly absurd to merit one moment’s serious consideration. It is not one in which the law anywhere authorizes or seems to contemplate a second trial upon the merits, neither upon demand, upon motion, nor upon appeal. In the absence of such statutory authority, the existence of such a right will not, we opine, be seriously claimed.
    
      James It. Tyler, also for plaintiff in error:
    1. The finding and certificate of the common pleas judge in the contest matter is final, and not reviewable.
    The act of April 18th, 1857 (S. & C. 1389), provides for a special proceeding begun, carried forward, and ended by virtue of the statute alone. Peck v. Weddell, 17 Ohio St. 271.
    The finding of the judge is a matter of great public importance, demanding a speedy finale.
    The finding or order of the court or judge in a contest matter is not sucb a judgment, or order, or decree as can be reviewed under tbe Code.
    
      Ewing v. Hollister, 7 Ohio, pt. 2, 138; 9 Ohio, 142-3; Tappan v. Tappan, 6 Ohio St. 64; Code, secs. 138, 295, 512, 513, 517, 604, 605; Bouvier's Law Dic., "Judgment;" 3 Bla. Com. 396; Hill v. Butler, 6 Ohio St. 207; Jennings v. Mendenhall, 3 Ohio St. 489; 15 Ohio St. 484; Hobbs v. Beckwith, 6 Ohio St. 252; Ex parte Collier, 6 Ohio St. 55, 60; Myers v. Myers, 6 Ohio St. 221.
    2. Tbe finding and certificate of tbe judge were solely as to matters of fact, no question of law being involved in tbe same; and hence tbe district court should not have reviewed the same.
    
      Asher Gooh, also for plaintiff in error :
    1. The acts of the judge of the court of common pleas are final, because they partook of a legislative, and not a judicial character.
    The constitution of the State of Obio, art. 2 sec. 30, provides that “ all laws creating new counties, changing county lines, or removing county seats, shall, before taking effect, be submitted to the electors of the several counties to be affected thereby, .... and be adopted by a majority of all the electors voting at said election.”
    The question, then, in all sucb cases, is as to the adoption or passage of a law; and when submitted to the judge or the court of common pleas, under the statute providing for a contest, there is no legal question to be adjudicated by a court of common-law jurisdiction; and in making the finding required by that statute, no one of tbe. legal functions of the court is called into requisition. The judge or court is only required to find facts, and not to determine questions of law.
    It is from the finding of the judge that the law takes effect, and cannot have force or effect given it in any other way. The language of tbe statute is: If upon such finding it shall appear . . . then and in that case, and not otherwise, the said lam shall be talcen amd held to be adopted, That is, upon that identical finding, a/nd not upon (mother 
      
      or subsequent finding. The legislature had the power to end the controversy at that point, and there can be no doubt but it intended it should there stop.
    The court will bear in mind there was no question before the court or judge for decision; but the court or judge had only to make a finding of fact, and when that was entered on the journal the law determined what effect that finding should have on the adoption. This was the sovereign sentence of the law, without any aid from the court. The judgment then pronounced by the law upon the acts of the law-making power was, that the act in question was not adopted; that is, was no law. What power, then, has the court to declare an enactment to be a law which the lawmaking power has declared defeated ?
    2. The acts of the judge of the common pleas are final, because there was no judgment rendered, or final order made by the court, which can be reviewed on petition in error. The finding of the judge is not a judgment of the court, but only the finding of certain facts to which the law gives 'force and effect.
    Prom the statute conferring this authority it is clear that the court or judge is not required to render any judgment in the case which in any way calls for the exercise of the legal judgment of the court. The judge only acts in the capacity of a commissioner or juror, in finding whether certain facts exist; and all that is required of him is to cause these facts to be entered on the journal.
    If, then, these proceedings can be reviewed by the district court, it must be because some law allows this finding of fact to be reviewed on petition in error where no final judgment is required to be rendered. This is certainly not done by sec. 513 of the Code; and as that is the only provision for review by petition in error, there is no provision for such review. Sec. 513 makes provision only for reviewing a final judgment or order, but here no judgment is required to be rendered or order made; and in fact no judgment or order as to the law or the removal of the county seat was made. There is therefore no judgment or order to be reviewed, or which can be reversed.
    The only thing to be reviewed or reversed is a finding of fact, and this can only be done by an appeal. But we are told the contestee could not appeal, because there is no law allowing appeal; and for a like reason, we tell him he cannot review it by petition in error, there being no law allowing that. The one cannot be done without law any more than the other. Both the right of appeal and petition in error are allowed by statute, and neither exists where not allowed by statute.
    Add to this the language of the statute — “ The matter of said contest shall be brought to a final hearing before said court or judge.” It then not only becomes final through failure to provide a means of review, but by the positive declaration of the law.
    
      J. H. Reid for defendants in error :
    1. As to the jurisdiction of the district court:
    It is not supposed to be essential, that the provision for a petition in error in this case should be found in the statute authorizing the proceeding for the contest of the election. Hence we may very well look elsewhere for such provision.
    Section 513 of Code provides that “ A judgment rendered or final order made by the court of common pleas . . . may be reversed, vacated, or modified, by the district court, for errors appearing on the record.”
    This was a special statutory proceeding, but was, it seems to me, subject to and governed by the above section. Eor there was “a judgment rendered and a final order made; ” and there is nothing in the statute itself, under which the contest proceeding was had, which would seem to preclude it from the operation of the above section of the Code. Myers v. Myers, 6 Ohio St. 221; Collier's Case, 6 Ohio St. 55-61; Hobbs v. Beckwith, 6 Ohio St. 252; Taylor v. Boyd, 3 Ohio, 337; Rennick v. West Union Bank, 13 Ohio, 298; Cisna v. Beach, 15 Ohio, 300.
    The common pleas is a court provided for by the constitu tion; and I cannot conceive of a single instance in which, it is required by law to act as a court, and “to find,” “enter the same of record,” and “ adjudge,” in which it acts, or can act, otherwise than judicially.
    
    But if the statute contained no such words as “ find,” “ adjudge,” “ order,” etc., we should have no trouble on this question, if we regard the substance of the matter under discussion rather than its form. The decision of the court in this case comes within the definition of a judgment (Code, sec. 370); and it was, if not in an action, certainly in a special proceeding. If the decision was a final order in a special proceeding, it is subject to review by the Code, petition in error. Sec. 513. It was a final order, if not a judgment. Code, secs. 509, 512; secs. 6 and 7 of the statute under consideration. S. & C. 1391.
    The court of common pleas acted judicially. Ex parte Logan Branch Bank, 1 Ohio St. 133; Sheldon v. Newton, 3 Ohio St. 494, 500.
    The statute under consideration authorized the judge, as well as the court, to act. I deem it unnecessary, however, to consider what the character of the judge’s acts would have been, whether judicial or otherwise, if he had acted, or whether his proceedings could have been reviewed.
    
      The judge did not act; all that was done, was done by the court / and whatever might have been the character of the proceedings of the judge, if he had acted as judge — whether it would have been that of a commissioner or otherwise — -cannot affect the character of the proceedings of the court, when acting as a court. Nor is it material whether the proceedings of the judge could have been reviewed on error.- But I do not concede that proceedings by the judge under this statute could not have been reviewed.
    It is also urged, that as the statute provided for final hearing, final order, and final judgment, therefore that the order and judgment rendered by the common pleas was the end of the whole matter, and was not subject to review. Such is not the language common in the statutes, when it is the intention of the legislature to cut off the right of further investigation. So far from it, that this very word “final ” is used in the Code when providing for the review of judgments, orders, and decrees by petition in error. They must be final, or they are not subject to review. See Code, secs. 511 to 518, inclusive.
    The case of Noble et al. v. Baker et al., 5 Ohio St. 524, is strongly with us.
    2. The district court was authorized to review this case on tiio facts as well as the law.
    Under the old practice, as it existed before the Code was adopted, this case would have been brought before the higher court by writ of certiorari, for this was the proper remedy where the proceedings of inferior courts were not according to the course of the com non law. Ewing v. Hollister, 7 Ohio, pt. 2d, 138; Walpole v. Ink, 9 Ohio, 142; Baxter v. Columbia Tp., 16 Ohio, 56.
    Before the act of March 12,1845, “ to regulate the judicial courts and practice thereof,” was passed, this case would have been subject to review by writ of certiorari, but only on questions of law.
    After said act was passed, and down to July 1, 1853, the date when the Code took effect, it would have been subject to review by writ of certiorari, and on questions of law and fact both.
    From July 1,1853, when the Code took effect, to April 12, 1858, the date of the act to relieve district courts, etc., the case at bar would have been subject to review by petition in error, but on questions of law only. House v. Elliott, 6 Ohio St. 497; Gest v. Kenner, 2 ib. 75; Erwin v. Shafer, 9 ib. 48; Miami R. R. v. Allen, 12 ib. 428.
    Since April 12,1858, such a case as the one under consideration would, in my opinion, have been subject to review by'the Code petition in error, and on questions of fact as well as law. Ide v. Churchill, 14 Ohio St. 377; Turner v. Turner, 17 Ohio St. 450.
    But so far as this case is concerned, it makes but little difference whether the district court could or could not review the facts; for it was decided by that court upon a question of law, and as purely a question of law as such a question can be distinct from fact; when we recognize the fact, that no question of law can possibly exist, without some fact upon which to base it. Whether certain facts can be judicially ascertained from the evidence before the court, is a question of law.
    
    And this was the case made in the district court. The common pleas court certified in the bill of exceptions, that the votes in the townships of Troy, Milton, Bloom, Jackson, Freedom, and Montgomery could not from the evidence “ be judicially ascertained.” This, it would seem, raised the same question in the district court, as would have been raised by a demurrer to the evidence, had such been our practice; for the question submitted to the district court was whether, applying the law to the testimony, there was legal evidence from which the votes of said townships could be judicially ascertained. With the light thrown upon the question by the case of Howard v. Shields, 16 Ohio St. 184, published after the trial in the common pleas, the errors of that court became very manifest, and no examination of the facts was necessary further than to ascertain that the errors were against the contestees, plaintiffs in error in the district court.
    3. The errors complained of affected substantial rights, and were against the party complaining as he stood on the record in the court below.
    These contestees were proper parties in the suit (S. & O. 1391); and if not, the objection cannot avail anything at this time. Code, sec. 89; Cairnes v. Knight, 17 Ohio St. 68.
    4. As to the constitutionality of the act under which the vote was taken, I refer to Peck v. Weddell, 17 Ohio St. 271, as settling the question.
    
      John O. Lee, also for defendants in error:
    1. The district court had jurisdiction to review the action of the common pleas.
    There is nothing in the contest statute that says the conclusion of the court or judge shall be final, and not subject to-review.
    
      The 513th section of the Code embraces the case. The conclusion of the court in the matter is the fonal judgment of the court. Code, sec. 370 ; Bouvier’s Law Die.
    Section 513 of the Code does not only apply to a final judgment in the civil action of the Code, but also to the final judgment of‘the court in a contested election case, and in the absence of special provision for the jurisdiction. Lehman v. McBride, 15 Ohio St. 587-8; Ingerson v. Marlow, 14 Ohio St. 568.
    See also Atlantic & Ohio Railroad Co. v. Sullivant, 5 Ohio St. 279; Hobbs v. Beckwith, 6 Ohio St. 252.
    Whenever there is not reviewing jurisdiction in the district court over the common pleas in any civil proceeding, it is where the statute expressly makes the action of the common pleas final, on some consideration of necessity, as in di/uorce. No such consideration, exists here. If any can exist, it is in favor of the contestees. The magnitude of the interests involved argue potentially for reviewing jurisdiction.
    2. Error appears of record.
    The bill of exceptions is fully authorized. S. & C. 1155, sec. 693; Contest statute, sec. 5; 6 Ohio St. 497, 500; 7 Ohio St. 75, 319, 320; 14 Ohio St. 568; 15 Ohio St. 587-8.
    No bill of exceptions is necessary, for the reason that the exceptions are fully noted aside from the bill; and because the statute providing for the contest specifies what testimony shall be taken, that it shall be filed in the clerk’s office and there remain; and that the hearing shall be upon the testimony thus taken, and upon no other facts or evidence.
    3. The objection that the act authorizing the vote is unconstitutional, is fully answered in 17 Ohio St. 271.
    4. The common pleas erred in throwing out entirely from the count the election returns from seve ntownships, on the ground that the vote therein “ could not be judicially ascertained.^ This error was corrected by the district court, at the hearing therein, upon the evidence filed by the commissioner and the law applicable to it.
   Day, J.

On the 29th of March, 1866, the legislature passed an act removing the seat of justice of Wood- county from Perrysburg to Bowling Green, on the adoption of the act by a majority of the electdrs of the county voting at the next ensuing October election. The election resulted in favor of the adoption of the act for removal.

Proceedings were instituted in the court of common pleas by the present plaintiff to contest the validity of the election, as authorized by the statute in cases of this kind. S. & O. 1389. The court found and entered of record, that a majority of the electors of the county, voting at the election, did not vote for such removal, and that the law was not adopted.

Thereupon the present defendants, who appeared in the common pleas under the authority of the statute as contestees, filed their petition in error in the district court, where the action of the common pleas was reversed, and the matter was remanded to that court for further proceedings.

To revei’se the judgment of the district court, and to affirm that of the common pleas, this petition in error is prosecuted by the present plaintiff, who was the contestor in the original proceedings in the court below.

It is claimed that the judgment of the district court must be reversed for want' of jurisdiction in this class of cases. It is true that there is no provision in the act, under which the contést was instituted and conducted, for a petition in error to review the action of the common pleas authorized by it; nor is there anything in the act expressly evincing a purpose to exclude the action of that court from review on error, as other special proceedings may be reviewed under the provisions of the Code. But such a purpose is sought to be inferred from the provision of the act authorizing a judge of the subdivision, as well as the court of common pleas, to determine the contest, upon the supposition that the action of the former cannot be reviewed.

It is provided by the 512th section of the Code that an order affecting a stibstantial right made in a special proceeding ” may be reviewed by petition in error. If the order be made by the court of common pleas, it may be reviewed by the district court, as provided in the 513th section of the Code; or if made by a judge, in the exercise of the judicial functions imposed by the act authorizing the contest, it would be reviewable by this court under the power conferred in the 514th section of the Code, though it might be held not to be reviewable in the district court.

Since, then, an order of a judge would be reviewable equally with an order of the court, the claim of the plaintiff on this point, against the jurisdiction of the district court, based on a contrary supposition, must fail. But however that may be, this case arises upon the action of the court at a regular term; and the jurisdiction of a reviewing court, in cases of contested elections, has heretofore been repeatedly upheld. Noble v. Commissioners of Noble Co., 5 Ohio St. 524; Lehman v. McBride, 15 Ohio St. 573.

But it is claimed that no “ final order ” or “judgment” of the court of common pleas, such as the Code authorizes the . district court to reviéw, is provided for or contemplated by the statute under which the contest was authorized and conducted.

It is certain that the statute, authorizing the contest of such elections, confers upon the court the power to determine a matter of great interest to the parties and the public, and it contemplates judicial action upon the questions that may ■arise in the contest; for it provides for a “ hearing before said court or judge, upon the law applicable to the case, and the evidence to be taken and filed ” as directed by the statute, and a finding whether the result of the election will be changed, “ by reason of illegal votes, or any other sufficient cause affecting its legality.” It is difficult to see any good reason why the legal questions arising in this class of cases should not be open to revision, the same as in cases of less importance; or, where nothing appears to the contrary, why undue weight should be given to objections that are merely technical, while overlooking the substance.

It is true that in the sixth section of the act, under which the court acted, the final action of the court is not called a “ judgment” or “ final order,” but is spoken of as a certificate of the result of the findings of the court to be entered of record.

Whatever this final action of the court may be called, it is a final determination of the rights of the parties; and a judgment in any case is nothing more. Code, sec. 370.

But in the seventh section of the act this certificate is called “ the final order or certificate,” and the costs are to be disposed of according to the result expressed in such “ final order.”

Since, then, the final action of the court is not only called in the act itself a final order, but is, in effect, the judicial determination of the proceeding, affecting the substantial rights of the parties interested, we think this objection to the jurisdiction of the district court is not tenable.

But, granting the jurisdiction of the district court, it is claimed that there is no error, properly appearing of record, that would justify that court in reversing the common pleas.

The statute under which the contest was prosecuted provides for the appointment of a commissioner, who is to proceed and take the testimony relating to the contest, and file the same in the office of the clerk of the court of common pleas of the county. It also provides that the matter of said contest shall be heard “ upon the law appertaining to the case, and the evidence to be taken and filed as aforesaid.” It appears by the journal entry made of the hearing by the coui’t, that the case was heard upon all the evidence so filed ■by the commissioner, “ and also upon the poll-books and tally-sheets of said election, and the ballots and votes given and cast at said election by the electors of said Wood county.”

It further appears from tbe bill of exceptions taken at the time, that, on consideration of all the evidence, the court found “ that the votes cast ” in seven of the townships could not be “judicially ascertained.; ” that the number of votes cast in the other townships in favor of removal was 1444; that the number of votes cast in said other townships against re-' moval was 1599; and that the whole number of votes cast in the county was 4647. Whereupon the court found and declared that a majority of the legal votes cast at the election was against the removal of the county seat, and that the result was contrary to that returned and certified. To all which findings of the court the contestees excepted.

The contestees moved for a rehearing, on the ground that the findings of the court were contrary to the law applicable to the case, and were not supported by evidence; which motion was overruled.

A bill of exceptions was taken, embracing the poll-books, tally-sheets, ballots cast at the election, and all the other evidence filed by the commissioner.

If it be conceded, as claimed on the part of the plaintiff, that the fourth section of the act of 1858 (S. & O. 1155) has no application to eases of this kind, and that, therefore, the findings of fact by the court cannot be reviewed as in civil actions, still we think exceptions may be taken, under the provisions of the Code, to the decisions of the court upon matters of law, and thereby lay the foundation to bring in review questions of law.

The sixth section of the act, prescribing the duty of the court on the hearing of the matter of contest, clearly contemplates that the result of the election as returned shall remain unchanged, unless, “ by reason of illegal votes, or other sufficient cause affecting its legality ” to be found by the court, a contrary result is produced. The court did, by its findings, change and establish a result of the election contrary to that returned and certified. This was clearly erroneous, unless the rejection of the votes of seven townships, which changed the result, was warranted by reason of their illegality or other sufficient cause affecting the legality of the election in those townships. The court had no right to reject the votes of these townships without a sufficient legal reason. The propriety of such rejection becomes, then, a question of law.

In the reason assigned by the court for not counting these votes it is not pretended that they cannot be ascertained as a matter of fact, but that they “ cannot be judicially ascertained.” Since the court could not prdperly reject these votes, without some reason affecting their legality or that of the legality of the election, the most favorable and reasonable construction of the language of the court is, that the evidence of the vote of those townships is so defective that- it cannot be legally considered by the court, and, therefore, that the votes cast in these townships cannot be “judicially ascertained.”

This view is rendered clear by an inspection of the bill of exceptions, as upon a question of law arising upon the evidence, or in relation to its admissibility. The poll-books and tally-sheets of the elections in these townships, together with the ballots cast by the voters, were in evidence. The certificates attached to the poll-books and tally-sheets, but for some formal mistakes and omissions, were correct, and substantially showed the vote for and against removal. The defects in the poll-books and tally-sheets were supplied by testimony on file; and the ballots, moreover, of each township were exhibited in evidence.

It is, therefore, perfectly clear that the vote of the rejected townships could have been ascertained as a matter of fact, and that the court must have declined to do so “ judicially,” for the reason, only, that it regarded the evidence inadmissible, and therefore held, that it could not be legally, or (as expressed by the court) “judicially,” considered.

Now, it is entirely clear that the evidence was admissible, and properly might have been considered by the court; and that the votes of the electors of these townships, on the question of removal, could thereby have been most easily and satisfactorily judicially ascertained.

The court, therefore, erred in rejecting the vote of these seven townships, and in thereby changing the result of the election from that returned and certified by the proper officers as the vote of the people on the question submitted to them.

But objection is made to this construction of the language of the court, and it is claimed that it must be taken according to the legal effect of its literal reading. If this be done, the same result will follow; for, without finding any illegality in the votes or in anything affecting the legality of the election, the court found that the result of the election was different from that returned and entered of record, as required by the statute which authorized the election.

The statute submitting the question of the removal of the seat of justice to the vote of the county, provided that the vote for and against removal should be returned by the judges and clerks of the elections in the several townships of the county, as required by law in other cases; and that an abstract of the vote so returned should be made and recorded in the clerk’s office, which “ shall be taken and received as legal evidence for all purposes of the result of said voting.”

The act under which the contest was had confers no authority upon the court to effect a change of this recorded result, except upon an affirmative finding that illegal votes were cast at said election ” upon the question submitted, by reason whereof, or for any other reason to be found ” by the court, the result as returned and recorded “ is contrary to what it would have been but for such illegal votes, or other reason so to be found.”

The court does not find that illegal votes were cast at the election, nor does it find any reason whatever showing that the result of the election was contrary to that returned and recorded, as required by the statute. It only finds that the vote cast in seven townships “ cannot be judicially ascertained.”

If the vote of the county could not be judicially ascertained by the court, and there was no other objection, it surely could not find that the result was contrary to that duly “ ascertained,” returned, and recorded by the proper officers. If the court could not ascertain what the vote cast in some of the townships was, and could in others, no more authority is conferred upon it to declare the result to be contrary to that returned, than if it had found that no part of the vote could be ascertained. It could not find the result of the whole vote to be contrary to that returned, upon a canvass of a part merely, unless the vote not counted was rejected for some “ sufficient cause affecting its legality,” to. be found by the court; for without a finding of some such. “ cause ” or “ reason,” the act confers no authority for changing the result from that returned and recorded. If the evidence returned by the commissioner failed to show what the vote cast was, then that returned must stand as the true vote and result of the election. If it did not enable the court to find some illegality in the vote or election, to warrant a change of the result under the contest act, the result returned and recorded under the act authorizing the vote, in the language of that act, “shall be taken and received as legal evidence for all purposes of the result of said voting.”

It is claimed that the ruling of the court did not prejudice any substantial rights of the contestees, and that therefore the district court ought to have dismissed their petition in error.

The act under which the contest was prosecuted authorizes any citizen of the county to appear as contestee in the case, and both calls and treats such contestee as a party to the contest. The rights affected by the contest are certainly substantial; and grave questions, affecting the rights and ■interests, of the parties and the public, may and do arise ■in such proceedings. The persons appearing as contestees ¿are, under the law, the parties to the proceeding representing the rights in controversy; and, as such parties, may .exercise, and are entitled to, the remedies necessary to a complete and legal determination of the contest. If this '.were not so, a great wrong, as in this case, by reason of a .•misapprehension of the law, would remain without a remedy, .contrary to the policy of the law in like cases.

It is urged that the whole act providing for the removal ■ of the seat of justice, and for submitting the question to the ■vote of .the county, was unconstitutional and void. This .question was fully considered and decided in the case of Peck v. Weddell, 17 Ohio St. 271; and we see no sufficient .reason for -changing the conclusion at which we arrived in .that case, sustaining the constitutionality of the act.

Without discussing other questions of minor importance ■that have been raised in the case, suffice it to say, that we ,think the district court had jurisdiction of the case brought before it, and that the judgment rendered by it ought to be affirmed.

Judgment accordingly.

Brinkerhoee, C.J., and Scott, Welch, and White, JJ., concurred.  