which he has the right to do unless he voted illegally,1 circumstantial evidence may be resorted to, identfying him with a certain party, or showing from whom he obtained his ballot, from which a presumption may be raised; and where a person is shown to have voted illegally, he may be required to say for whom he voted, unless he decline. because to do so would be self-criminating. (Brightly's Election Cases, 248; McDaniel's Case, 3 Pa. Law Journal, 310.) And, in accordance with the doctrine in People v. Pease, that circumstantial evidence may be resorted to, such circumstances as that the illegal voter asked for a certain ticket, that there were no scratched tickets, etc., were admitted. (Thompson v. Ewing, 1 Brewst., 68-69.)

McDaniels' case and others state the rule to be, in cases where illegal votes are shown to have been polled, without showing for which candidate, to deduct from each the per centage which the illegal vote is of the whole number cast. (Cushing's Election Cases, 583; Shepherd v. Gibbons, 5 Brewst., 128.) This is obviously, however, an expedient which, though it may make the aggregate, as reduced, a better representation of the legal vote, can only reduce the majority of the leading candidate. The only alternative is, in such cases, to order a new election where there is power to do so. But it was held in Duffey's Case, 4 Brewster, 531, that where notice is given by a contestant to the person having the majority

1. People v. Cicott, 16 Mich., 283; State v. Hilmantel, 23 Wis., 422.

that illegal votes were received, it is incumbent upon the latter either to prove that the votes were legal or that they were cast for the contestant, and, if he fails to do so, they will be taken altogether from his count. Mr. McCrary doubts the correctness of this doctrine,1 and it would certainly seem to be contrary to the familiar principle of evidence which puts the burthen of proof on him who affirms.

3

The disposition of the courts is against rejecting the entire poll if it is possible to ascertain for whom the majority of legal votes were given,2 and if, in recounting the ballots, it be found that some of them have been marked by the election officers in violation of the statute, they should, nevertheless, be counted. Where the statute provides how the ballots should be kept after the election and they are so kept, they are the best evidence, but if they have not been so kept, it is questionable whether they should be received in evidence. If they are, their value is for the court or jury to decide upon under all the circumstances.4

Notice is indispensable in all contests (Brightly's Election Cases, 646), and where it is to be given within a given number of days after the determination of the result, the rule for computing the time is to include the first and exclude the last day, or vice versa.

1. McCrary on the American Law of Elections, page 227. 2. Biddle and Richards v. Wing, Cl. & H., 504.

3. McKenzie v. Braxton, Giddings v. Clark, 42d Congress. 4. Cooley's Constitutional Limitations.

Quo Warranto and Mandamus.

Statutory provisions for contesting elections do not abolish the proceeding by quo warranto to inquire by what right a person occupies an office, and to oust him if he is an usurper. (People v. Holden, 12 Cal., 123.) The two remedies are distinct, that by quo warranto belonging to the people "in the right of their sovereignty." (Ibid.) Mandamus is not the proper remedy for obtaining possession of an office, but it will lie to compel the election officers to perform such duties as are required by statute and as are purely ministerial-as to canvass the returns. and declare the result as shown by them and decided in a proper action, and issue certificates in accordance therewith. (Clark v. McKenzie, 7 Bush, Ky., 523.) Mandamus may also issue to compel the officer whose duty it is to swear in the person elected to perform that duty. (Ex parte Heath, 3 Hill, 42.) But this will not confer any title not already existing. (High on Extraordinary Remedies, § 52.)

With these exceptions, the general rule applies in controversies relating to elections, as in other controversies, that the writ of mandamus will not be granted where another adequate remedy exists, and the courts refuse it in all cases in which an information in the nature of a quo warranto, or other proceeding provided by statute, will secure to the aggrieved party the rights of which he is deprived. The authorities are numerous in

this country, and the courts of England hold the same doctrine.2

1. High on Extraordinary Rem., ¿ 49; People v. N. Y. 3 Johns. Cas., 79; People v. Sup. of Greene, 12 Barb., 227; Anderson v. Colson, 1 Neb., 172; Bonner v. State, 7 Geo., 473; St. Louis Co. Ct. v. Sparks, 10 Mo., 118; State v. Rodman, 43 Mo., 256; People v. Council of Detroit, 18 Mich., 338; Underwood v. White, 27 Ark., 382, etc.

2. King v. Mayor of Colchester, 2 T. R., 260; Queen v. Derby, 7 Ad. & E., 419.

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