showing that a person voted the poll list is admissible in evidence, though not signed by the inspectors or clerks having no heading to denote its character, and never having been filed in the clerk's office. (People vs. Pease, 27 N. Y., 45.) But it would, of course, be necessary to prove by evidence aliunde, that such a paper was the poll list, which was actually kept by the officers of the election, since it would not prove itself.

§ 293. And where a voter refuses to disclose, or fails to remember for whom he voted, it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact. Ibid. And see Cushing's Am. Parl. Law, Sec. 199, 210. And within this rule it was held in People vs. Pease, to be proper to ask the voter for whom he intended to vote; also to prove that he was an active member of a particular political party, or obtained his ballot from a person who was actively supporting a particular candidate or a particular ticket. (d.)

§ 294. It seems to be quite well settled that where one who is alien born has voted at an election, the law presumes that he has been naturalized until the contrary is shown. To presume the reverse would be to presume that a crime has been committed, but the law always presumes innocence. It is true this involves the necessity of proving a negative, a very difficult thing to do, but often necessary in order to charge a party with a criminal offense. (New Jersey Case, 1 Bartlett, 24.) The very great difficulty

(d.) Notwithstanding the high authority of People vs. Pease, it is apparent that the distinction between asking a voter for whom he voted and asking him for whom he intended to vote, is very narrow, and probably not substantial.

however, of proving that a person has not been naturalized, would seem to require that slight proof ought to be sufficient to shift the burden. Thus, if it be shown that he claimed that aliens had the right to vote, or if he has made declarations or admissions. to the effect that he has not been naturalized; or if he produces as the evidence of his citizenship, a paper showing that he has declared his intention to become a citizen only; or perhaps, if when he is called as a witness, he refuses to answer whether he has been naturalized or not, or to say when or where, or by what Court, he was naturalized—in any of these cases, the presumption that such a voter was duly naturalized ought to be regarded as so far overcome as to require the party seeking to sustain his vote, to produce affirmative evidence of naturalization, a thing not very difficult to do, since there is always a record, and the voter must be presumed to know where it is. There are in the United States many hundreds of Courts possessing the power to grant naturalization, and to require in any case that affirmative proof be offered that no one of such Courts has ever granted naturalization to a particular person, would be to require what is practically impossible.

§ 295. The charters of most municipal corporations contain a provision to the effect that the council or other legislative body thereof shall be “the judge of the election and qualification of its own members." And an important question has arisen as to whether the jurisdiction of a city council, or other similar body, is under such a charter exclusive of that given to the courts of justice or only concur

rent with it. In State vs. Funck, (17 Iowa, 365,) it was held that inasmuch as the city had passed no ordinance defining the method by which an election of one of its members may be contested, the claimant could resort to the proceeding provided by statute for trying title to a public office, but no opinion was expressed as to what the law would be in a case where provision is made by ordinance for such trial. An examination of the adjudged cases in this country will, however, show that the jurisdiction of the Courts to inquire into the regularity and the validity of elections-a jurisdiction which belongs to all Courts of general and original jurisdiction, is not to be regarded as taken away by any merely negative words. Their jurisdiction remains unless it "appears with unequivocal certainty that the legislature intended to take it away." (Dillon on Municipal Corporations, Sec. 144.) It follows that a charter provision that the council of a city "shall be the judge of the election, qualifications and returns of its own members," does not oust the courts of justice of their jurisdiction. The two tribunals have concurrent jurisdiction in such a case; but if the provision be that no court shall take cognizance of cases of this character, or that the council shall be the sole or the exclusive, or final judge, &c., then the courts are shorn of their power in the premises. Upon this general subject see the learned and exhaustive discussion by Judge Dillon, in his work on Municipal Corporations, Sec. 139 to 142. also State vs. Fitzgerald, 44 Mo., 425. wealth vs. Carrigues, 28 Pa. State R., 9. Filley, 43 Pa. State, 384. Commonwealth

And see

CommonEwing vs. vs. Leach,

44 Pa. State, 332. Cooley on Const. Limitations, 276, 623, 634, note. Smith vs. New York, 37 N. Y. 518. People vs. Mulvaney, 13 Mich., 481. Ex parte Heath, 3 Hill, N. Y., 42, and cases cited by Cowan, Judge. See also Selleck vs. Common Council, &c., 40 Conn. 359. Palmer vs. Foley, 36 Superior Court, [N. Y.,] 14. Baxter vs. Brooks, 29 Ark., 173. The true doctrine seems to be that a special remedy given by statute is cumulative, and not exclusive of the ordinary jurisdiction of the courts, unless the manifest intention of the statute be to make such special remedy exclusive, and such intention must be manifested by affirmative words to that effect.

§ 296. A statute of New York directed that one of the inspectors of election who shall actually preside at such election, to be appointed by the major part of the inspectors, shall in person deliver to the clerk a copy of the statement of votes. It was held that the appointment of the inspector to deliver the statement to the clerk need not necessarily be in writing. An appointment by writing, in such a case, is to be preferred, but is not indispensable, since the statute is silent as to the mode of appointment, and it was therefore error to exclude a statement of the vote at a given precinct, because the inspector presenting it did not produce WRITTEN evidence of his appointment to discharge that duty. (The People vs. Van Slyck, 14 Cowan, 297.)

§ 297. It is very clear that the rule which upon grounds of public policy protects the legal voter against being compelled to disclose for whom he voted, does not protect a person who has voted illegally from making such disclosure. To give to that rule this wide scope, would be to make it shield alike the right and the wrong, the honest and the dishonest. It was intended to protect the inviolable

secrecy of an honest ballot, and thus the purity of the ballot box. It was not intended to be used in aid of the schemes of corrupt men to defeat the will of the people. It follows, that having proven that A. voted at the election in question, and that he was not a legal voter, he may be required to testify as to the person or persons for whom he voted. (McDaniel's Case, 3 Pa. Law Journal, 310. Brightley's Election Cases, 248.)

§ 298. If an illegal voter, when called as a witness, swears that he does not know for whom he voted, and it is impossible to determine from any evidence in the case, for whom he voted, his vote is not to be taken from the majority. Ibid. But it does not follow that such illegal votes must necessarily be counted in making up the true result, because it cannot be ascertained for whom they were cast. In purging the polls of illegal votes, the general rule is, that unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, and not from the candidate having the largest number. the largest number. (Shepherd vs. Gibbons, 2 Brewst., 128. McDaniel's Case, 3 Penn., L. J., 310. Cushing's Election Cases, 583.) course, in the application of this rule such illegal votes would be deducted proportionately from both candidates, according to the entire vote returned for each. Thus, we will suppose that John Doe and Richard Roe are competing candidates for an office, and that the official canvass shows

Of