Ellis v. May | Cases | Westlaw

This is an information in the nature of quo warranto to determine the question whether the relator or the respondent received the greater number of legal votes cast in the county of Wayne at the general election held November 8, 1892, for the office of county clerk. The original election returns, as certified by the inspectors of election and returned to the office of the county clerk, show that the relator received 26,821 votes, and the respondent 26,799, or a majority for the relator of 22 votes. A recount was had under Act No. 208 of the Public Acts of 1887 (3 How. St. § 234a), by which it was shown that the respondent received 26,847 votes, and the relator 26,729, or a majority for the respondent of 118 votes; and the board of county canvassers were directed to issue the certificate to the respondent. May v. Board, 94 Mich. 505, 54 N. W. 377. In the present proceeding eight replications were filed to respondent's plea. Respondent demurred to these replications. The cause was heard on these demurrers at the October term, 1893, and the demurrers overruled, with leave to the respondent to plead over. The decision of these questions is reported in Attorney General v. May, 97 Mich. 570, 56 N. W. 1035. Rejoinders were filed by respondent to these replications, denying the facts therein set forth, and putting himself upon the country. The cause was subsequently sent down to the Oakland circuit court for trial of these issues of fact. Forty-nine special questions were submitted to the jury for their findings, and, by their answer to question No. 46, they have found that Henry M. Reynolds received the greatest number of votes cast for that office, *541 and that he had a majority over May of 1,926 votes. The trial court has returned the proceedings into this court, and relator now asks judgment of ouster against respondent.

The cause has been very ably argued upon both sides, and the issues now to be determined are narrowed down to two or three points. The principal question is raised under the sixth replication, the substance of which is set out in Attorney General v. May, 97 Mich. 572, 56 N. W. 1035. In that it is alleged that in the fourth precinct of the Fifth ward of the city of Detroit the chairman of the board of inspectors of election illegally and wrongfully received 750 ballots, and illegally and wrongfully deposited the same in the ballot box, said ballots having been marked and shown to persons who were not lawfully assisting the voters or any of them in the preparation of their ballots before said ballots had been deposited, and that the same were shown in such a manner as to disclose to the persons to whom they were shown some or all of the names of the candidates voted for upon said ballots; that said ballots were so deposited unmarked and unchallenged by the board of inspectors; that said votes went to make up the large **484 majority of 553 votes in favor of respondent; that, by reason thereof, the election in said precinct was rendered wholly invalid, illegal, and of no effect upon the election for the office of county clerk; and that, by reason thereof, the said relator was elected by a majority of 565 votes. The objection to this replication was that it tendered an immaterial issue, and that it was not averred that the election in said district was so invalid as to effect the disfranchisement of all the electors therein. It was said by this court in the opinion overruling the demurrer: “It is alleged that 750 ballots were exhibited contrary to law; that the election in said precinct was therefore void, and that, with those votes thrown out, the relator *542 was elected. The allegation is not confined to the canvass and recount, but to the illegality of the vote. If the respondent's position be true, that the replication alleges simply that the canvass and the recount of the votes cast at this precinct were invalid and illegal, the fair import of the language is that it attacks the legality of the entire vote of the entire precinct.” Issue was joined upon this replication by the respondent, and it became one of the questions of fact to be found by the jury. By the answers to questions 13 and 14, the jury found that Henry M. Reynolds received in all the townships and voting districts of said county, not including the fourth district of the Fifth ward of Detroit, 25,910 votes, and that William May received in such townships and wards, not including the fourth district of the Fifth ward, 23,984. To question No. 46, the jury found that Mr. Reynolds received 1,926 majority over Mr. May. Many questions are raised over the findings under certain other of the replications, but, as the determination of the question arising under the sixth replication must settle the controversy in favor of Mr. Reynolds, the relator, we need not enter fully upon a discussion of the other questions. All of the votes in the fourth district of the Fifth ward of Detroit were discarded by the jury.

The testimony on the part of the relator showed that the inspectors of election in that district were Alois Diemel, Edward Fierz, John Manquin, Bernard Zentowski, Peter Brinker, and John Vandergyp; that no one was designated by the board to assist voters in the preparation of their ballots; that William F. Schneider and John Erhard were United States supervisors of election, and that Joseph Diemel and Peter Knauss were deputy United States marshals for that district; that the greater part of the voters were Poles, Germans, and Italians, and that from six to seven hundred of these voters were assisted in marking their ballots because they could not read English; that none of *543 the voters thus assisted were sworn as to their ability to read English; that the only persons who actually marked the ballots for such voters were Alois Diemel, John Vandergyp, Joseph Diemel, and Peter Knauss; that during the election the marking of ballots for voters in this district as above described was seen and observed by the United States officers of election and the deputy United States marshals above named. On the part of the respondent, it is shown by the testimony, and admitted, that this large number of voters were assisted in marking their ballots, and, as claimed, because they could not read English; and that none of them, thus assisted, had been sworn as to his inability to read English. It is not denied that these deputy United States marshals saw how these ballots were marked, but it is claimed that this method was adopted because it was believed that, on account of the large registration and the great number of voters needing assistance, the proper vote of the district could not be cast if the work of assisting voters were to be done only by Diemel and Vandergyp in company with each other. It was also shown that Diemel and Vandergyp were designated by the board to assist voters in marking their ballots.

1. It is contended by counsel for respondent that the court was in error in its direction to the jury that “if any voter was not first sworn as to his inability to read English, and allowed his ballot to be marked for him, or allowed any one to see his ballot when it was marked, he thereby lost his right to vote at that election, and that it was unlawful for any inspector of election to mark the ballot of any elector who had not been sworn as to his ability to read English.” Upon this point it is contended that the statute under which this portion of the charge was given is not mandatory, but directory merely, and that the provisions requiring assisted voters to be first sworn, as construed by the court *544 below, is unconstitutional, because it puts unreasonable restrictions upon the right to vote. Section 32, Act No. 190, Pub. Acts 1891, provides: “When any elector shall make oath that he cannot read English, or that because of physical disability he cannot mark his ballot, or when such disability shall be made manifest to said inspectors, his ballot shall be marked for him in the presence of at least two of the inspectors by an inspector designated by the board for that purpose, who is not a candidate on said ticket.” By section 26 it is provided: “If any elector shall show his ballot, or any part thereof, to any person (other than one lawfully assisting him in the preparation thereof) after the same shall have been marked, so as to disclose any of the candidates voted for, such ballot shall not be received or deposited in the ballot box. In case such elector shall so expose his ballot, his name shall be entered on the poll list with a minute of such occurrence and such elector shall not be allowed to vote thereafter at such election.” Section 45 of the act provides: “Any person who shall **485 * * * disclose to any other person the name of any candidate voted for by any elector, the contents of whose ballot shall have been seen by such person * * * shall be deemed guilty of a felony, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment in the state prison not exceeding two years, or by both such fine and imprisonment in the discretion of the court.” These provisions were intended to secure the entire secrecy of the ballot, except so far as was absolutely necessary to enable such elector as could not read English to have assistance in marking it. The only test under this statute which the inspector, who is designated to assist the voter, can apply to determine whether the elector can read English is that the elector shall make oath of the fact. No other test is permissible, and it is unlawful for any inspector to assist in marking a ballot for any *545 elector who claims that he cannot read English until such elector shall have first made oath to the fact. The construction contended for by the respondent cannot be given. Such interpretation would allow a voter to be assisted upon his own mere statement that he could not read English, and give inspectors unlimited discretion to mark ballots. The intention of the legislature was to limit the marking to those who made the oath, or to those who from physical disability could not mark them. This intent is evidenced by the other portions of the statute above quoted, as, by section 26, if the ballot is seen after it is marked by any other than the inspector lawfully assisting, so as to disclose any of the candidates voted for, such ballot shall not be received or deposited in the box; and, under section 45, a penalty by fine and imprisonment is imposed upon any one so disclosing his ballot. These provisions are mandatory, and the court very properly so charged the jury. These very sections were under consideration in Attorney General v. McQuade, 94 Mich. 439, 53 N. W. 944, and there held mandatory. Similar provisions were also held mandatory in the following cases: People v. Board of Canvassers of Onondaga Co., 129 N. Y. 395, 29 N. E. 327; People v. Board of Sup'rs Dutchess Co., 135 N. Y. 522, 32 N. E. 242; State v. Walsh (Conn.) 25 Atl. 1; Baxter v. Ellis (N. C.) 15 S. E. 939; Spurgin v. Thompson (Neb.) 55 N. W. 297; Bechtel v. Albin (Ind. Sup.) 33 N. E. 967; In re Ballot Marks (R. I.) 27 Atl. 609. Under the proposition that the act is unconstitutional because it puts unreasonable restrictions and regulations upon the right to vote, counsel cites Attorney General v. Common Council of Detroit, 78 Mich. 545, 44 N. W. 388. That case arose under a local act of the city of Detroit, passed in 1889, and it was held invalid because its tendency was to disfranchise a large class of voters in the city by unreasonable restrictions upon the manner of registration and of *546 finding that they were entitled to registration. Such claim cannot be made under this act. The regulations are to preserve the purity of the election, and we see no constitutional objections to them as prescribed by the act. Certainly the reasons given by this court for holding the act void in Attorney General v. Common Council of Detroit have no application here. Similar laws have been upheld in many other states. In State v. Black, 24 Atl. 489, the supreme court of New Jersey, speaking of similar provisions of a statute in that state, says: “Any provision in such an act which is likely to bring about a result which conduces to the purity of popular elections should receive a favorable consideration. It is of course true that, if the effect of any provision is to shut off the voters from the ballot box, such provision must fall before the constitutional guaranty of the right to vote. But in measuring the cases of mere inconvenience, expense, or sentiment, the existence of a salutary purpose and the likelihood of the provision tending to accomplish that purpose must weigh greatly in determining the reasonableness of the statutory regulation.” The supreme court of Missouri, in Bowers v. Smith, 20 S. W. 101, says: “The ballot reform law was intended to improve the methods for giving expression to the popular will in the choice of public officers. It should be construed so as to promote, not to destroy, the great object in view in its passage.” And the supreme court of Pennsylvania, in De Walt v. Bartley, 146 Pa. St. 529, 24 Atl. 185, says: “The law itself may be regarded in the light of an attempt on the part of the people to secure a pure, free, and unintimidated ballot. Every presumption is in favor of the constitutionality of the law.” The following cases also uphold the constitutionality of *547 similar acts: In re Ballot Marks (R. I.) 27 Atl. 608; Minor v. Olin (Mass.) 34 N. E. 721; Simpson v. Osborn (Kan.) 34 Pac. 747; State v. Benton (Mont.) Id. 301; Atkenson v. Lay (Mo. Sup.) 22 S. W. 481. Our constitution, by article 7, § 2, provides: “All votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen;” and by section 6 of the same article it is provided: “Laws may be passed to preserve the purity of elections and guard against the abuse of the elective franchise.” The act in question was passed to secure this end; and although it may result in some inconvenience to the voter, the restrictions placed upon the manner of voting, and regulations under which votes may be received and placed in the ballot boxes, are within the province of the legislature under the provisions of the constitution above quoted. The law aims to secure secrecy in the ballot, and does not attempt to disfranchise any voter. At the expense of this secrecy, and in order to enable voters who are physically incapacitated from marking their ballots, the law provides a method for such aid, as well as to those who **486 cannot read the English language. The law does not deprive these voters of any right, but rather secures to them aid in voting intelligently; it is plain and simple in its provisions. Every voter, however illiterate or however much incapacitated physically, has a method pointed out by which he may exercise his right of franchise. The law does not shut off any class of voters from the ballot, and, we think, was designed by the legislature to accomplish the purpose specified in the constitution. Act No. 263 of the Public Acts of 1889, containing provisions to secure purity of elections, was before this court, and held valid in Common Council of Detroit v. Rush, 82 Mich. 532, 46 N. W. 951, and the present act was before this court in Shields v. Jacob, 88 Mich. 164, 50 N. W. 105; *548 Chateau v. Jacob, 88 Mich. 170, 50 N. W. 102; and McQuade v. Furgason, 91 Mich. 438, 51 N. W. 1073. The questions in these cases referred to other provisions of the act, but in each the provisions of the act were enforced in the furtherance of the purity of the elections.

2. It is contended that the court was in error in directing the jury: “It is unlawful for either United States marshals, challengers, or others, except inspectors of election who are lawfully assisting him, to either mark the ballot for voters, or see them marked, before they are deposited in the ballot box, and all such votes are void; and it is contrary to law to deposit them in the ballot box or to count them in determining the result of the election.” Section 32 provides the only authority by which an elector may have a ballot marked. It has been quoted above. The marking can be done only by an inspector designated by the board for that purpose, and in the presence of at least two of the inspectors. Under this act, no other can lawfully mark ballots, and to no other can the ballot be exhibited, unless United States supervisors of election may see them when a member of congress is to be elected. The court was therefore right in its interpretation of this act, if United States supervisors of election may not witness the marking. But counsel for respondent contends that, inasmuch as members of congress were to be elected at that election, this act must be construed in the light of, and in subordination to, sections 2017, 2019, 2021, 2022 of the Revised Statutes of the United States. Section 2017 provides that “supervisors of election are authorized and required to attend at all times and places for holding elections for representatives or delegates in congress * * * to be and remain where the ballot boxes are kept at all times after the polls are open until every vote cast at such time and place has been counted * * * and to personally inspect and scrutinize from time to time and at all times *549 on the day of election the manner in which the voting is done.” Section 2019 provides that “the better to enable the supervisors of election to discharge their duties, they are authorized and directed * * * whether before or behind the ballot boxes as will in their judgment best enable them to see each person offering himself for registration or offering to vote, as will best conduce to their scrutinizing the manner in which the registration or voting is being conducted.” By section 2021 it is provided that United States marshals shall attend, at all times for holding elections, the polls in such district or precinct; and, by section 2022, it is further provided that “the marshal and his general deputies and such special deputies shall keep the peace and support and protect the supervisors of election in the discharge of their duties, preserve order at such place of registration and such polls, prevent fraudulent registration and fraudulent voting thereat, and fraudulent conduct on the part of any election officer.” Counsel for respondent, it appears, at the close of the testimony asked the court to instruct the jury, in his fifth and ninth requests, as follows: “(5) If you are satisfied from the evidence that the method pursued by Inspectors Diemel and Vandergyp, in company with United States Officers Erhard and Knauss, in assisting voters in preparing their ballots, was pursued in good faith, and the voters in like manner received such assistance, then, in respect to the preparation of them, the ballots must be treated as valid.” “(9) Under the constitution and laws of the United States, the United States supervisors and deputy marshals at the election in question were authorized to put themselves in such place or places as would enable them to see that the ballot of an assisted voter was marked as directed or desired by the voter, and a disclosure of the contents of *550 such ballot to the United States officers under such circumstances does not invalidate it.” These requests were refused. Mr. Erhard, referred to in the fifth request, was United States supervisor of election, and Mr. Knauss a deputy United States marshal. By the finding of the jury, it appears that Mr. Erhard did not mark any of the ballots himself, but he saw others mark ballots of voters, and there were disclosed to him the names of 20 candidates voted for on the ballots so marked; and that the other supervisor of election saw 100 marked, and these were disclosed to him. But we shall not, for the purposes of this case, regard these ballots as irregular. It appears that Mr. Knauss, the deputy United States marshal, marked the ballots of 10 electors, and had disclosed to him the ballots of 100 electors after they were marked, so that he saw the names of the candidates voted thereon. Under the charge of the court, the jury were directed that it was unlawful for these officers to mark ballots or to see them marked, or for any disclosure of such ballots to be made to them. It is therefore seen that the court below did not discriminate between the United States supervisors of election and the deputy United States marshal.

**487 Whatever may be said in reference to the power and authority of the United States supervisors of election under the federal law to mark ballots, or see them marked, for the purpose of seeing that the election is fairly and properly conducted, it is apparent that the deputy United States marshals have no such right or authority. In U. S. v. Gitma, 3 Hughes, 549, Fed. Cas. No. 15,209, after citing sections 2017 and 2019 of the Revised Statutes of the United States, above quoted, the court said: “Thus, not only does the law in terms empower a supervisor to be in the room with the judges of election, but empowers him to be in any place or position in which in *551 his own judgment he can best perform his duties. The act of congress which is thus specific in defining and complete in conferring these powers on supervisors is the same one which prescribes the duties of deputy marshals. While it is thus express and full in regard to supervisors, it is the reverse in defining the authority of deputy marshals. Section 2021 simply provides that, when required to do so by the supervisors, it shall be the duty of deputy marshals to attend the polls in their districts or precincts. The section gives the deputy marshals no authority except to be present at the polls. The same act of congress which expressly directs supervisors to place themselves before or behind the ballot boxes as they may think proper is silent in regard to deputy marshals, and gives them no such authority.” It is said by the court, in reference to section 2022, that that section defines the object of the appointment of deputy marshals, and defines their powers and duties,–that is, to keep the peace, and support and protect supervisors in the discharge of their duties,–and omits to give them authority to go behind ballot boxes and place themselves in any position they please, and that their duties are therefore not those of supervisors of *552 election, but those of conservators of the peace at the polls, and that they have no right to be in the room in which the judges and supervisors of election are performing their duties, or go behind the ballot boxes, unless requested to do so by the judges and supervisors, except to prevent violence, or to preserve the peace when actually disturbed, or to prevent fraud actually attempted in the room. It is evident from the reading of these statutes that the deputy United States marshals, in the present case, had no right to mark ballots or to see them marked, or to know for whom the electors were voting. The court was therefore right in its direction to the jury, so far as the deputy United States marshals are concerned, and therefore right in refusing the request to charge, as the requests coupled the marshals with the supervisors of election. Whether the court was correct in the charge as to United States supervisors of election we need not discuss or pass upon, as it is apparent that, if the court was wrong in that particular, the respondent is not in any manner prejudiced by the ruling, as will be made apparent in our further discussion. The jury found, by the thirteenth and fourteenth findings, that the relator received in all the voting precincts of the county, aside from the fourth district of the Fifth ward of Detroit, 25,910 votes, and that the respondent received in the same districts 23,984 votes. The jury also found, by the forty-sixth finding, that the relator had a majority over the respondent in all the districts within the county of 1,926 votes. It is thus apparent that the jury, in arriving at this result, threw out the entire fourth district of the Fifth ward. This was undoubtedly done under the testimony and the charge of the court, in which they were directed as follows: “If illegal votes were received, and the evidence does not show in whose favor the illegal votes were cast, and they are as great in number as the majority received in that voting district, then the election in that district shall be thrown out and disregarded by you. If the evidence does not disclose for whom such illegal votes were cast, and they are less in number than the majority in that voting district, then they shall be taken from the total vote proportionately, according to the entire vote returned for each candidate in that precinct.” It is contended that this was error. As to the fourth district of the Fifth ward, the jury found that Alois Diemel and John Vandergyp were designated as inspectors, by the board of inspectors, to mark ballots for electors who made oath that they could not read English. They found that 565 electors were assisted in marking their ballots because they could not read English, and that not one of them made oath that he could not read English. *553 The jury further found that in that district Alois Diemel marked 320 ballots not in the presence of any other inspector; that Joseph Diemel, deputy United States marshal, marked 10 ballots, and saw 100 ballots marked by others, and that the contents thereof were disclosed to him; that Peter Knauss, deputy United States marshal, marked 10 ballots, and saw 100 ballots marked by others, and the contents thereof were disclosed to him; so that the jury found at least 540 illegal ballots cast at that poll, not counting those seen by the supervisors of election. In the fourth district of the Fifth ward, the record shows that the relator received 298 votes and the respondent 858 votes, or a majority for respondent of 560. It appears, therefore, that the jury must have taken into account the ballots marked and seen marked by the United States supervisors of election to make the number of illegal votes equal to the majority received by the respondent; that is, the 20 marked by Erhard and the 100 by the other supervisor, Mr. Schneider. If, however, the whole district should not have been excluded, and the illegal vote had been **488 taken from the total vote, proportionately, according to the entire vote returned for each candidate in that district, it is apparent that the relator would still have a majority of the whole vote of the county, as shown by the finding of the jury, that being that the relator had 1,926 majority. If it be conceded that the respondent should have had the vote of that district apportioned, then he should be credited with a majority over the relator of 340. If now we take the other districts where the respondent had a majority, and make the same deductions, to wit, the fourth district of the Ninth ward, fifth district of the Eleventh ward, and fourth district of the Twelfth ward, he should be credited with 384 votes more; that is, *554 in the four districts of thE fifth ward, together with these other districts which should have been apportioned, he should be credited with a majority of 724 votes in those districts. But even this leaves the relator ahead 1,202 votes in the whole county. So that, if it be conceded that the court was in error in the charge in permitting the jury to throw out any district, and the districts in which the respondent had a majority be apportioned under the rule laid down by the court, still the relator has a majority. This majority would be increased if the same rule were to be applied to districts where his majority was less than or equal to the illegal vote, as the jury found it was in the ninth district of the Second ward, the first district of the Fourth ward, the first district of the Sixth ward, the third district of the Eleventh ward, and the second district of the Thirteenth ward.

But it is claimed that the court erred in admitting testimony tending to show how many illegal voters voted, and in requiring inspectors of election and United States supervisors and deputy marshals to testify to the contents of ballots which were made known to them only in the performance of their official duties. This testimony is found in the cross-examination of respondent's witnesses, and that given by relator in rebuttal. The first relates to 15 different districts, and the latter to 11 districts. We have carefully examined that testimony, with the result that ballots of both candidates were shown to have been exhibited so that parties seeing the ballots were able to state for whom the elector was voting; the only difference being that about 20 more ballots were exhibited showing respondent's name thereon than the relator's, so that, if all such ballots were excluded, it could make no possible difference in the result. If, therefore, the court was in error in directing the jury that “if illegal votes were received, and the evidence does *555 not show in whose favor the illegal votes were cast, and they are as great in number as the majority received in that voting district, then the election in the district shall be thrown out and disregarded by you,” it could not affect the result. We need not, therefore, pass upon the question whether the court was or was not correct in his instruction. It went beyond the rule laid down in Attorney General v. McQuade, 94 Mich. 439, 53 N. W. 944. In that case the question was one of fraud affecting the whole poll, and the rule was adopted from the language of the court in Heyfron v. Mahoney, 9 Mont. 497, 24 Pac. 93, and other cases there cited, that, where the frauds are of such character that the correct vote cannot be determined, the return of the precinct will be rejected. In the present case the inspectors and other officers of the various districts are not charged with active fraud, but in marking ballots of those who claimed they could not read English, without having first made oath as to that fact. This may have arisen from the interpretation of the statute now claimed by respondent's counsel; that is, that such provisions are not mandatory, but directory merely. And, again, it appears that proofs were obtainable and actually introduced as to the number of electors whose ballots were so marked. This would not, under the facts shown, necessarily taint the vote of the whole district, and it would not taint the whole ballot if the jury were able to determine the correct ballot, as, under such circumstances, it would not destroy the presumption of the correctness of the other ballots cast. But, as said, this question, as it relates to the present case, is of but little moment, for the jury were able to determine the number of illegal votes put in the boxes in the various districts.

3. We now come to the other portion of the charge, where, in substance, the jury were directed that they should take the illegal votes from the total vote proportionately, according to the entire vote returned for each *556 candidate in that district. In this we think the court, under well-settled rules, was entirely correct. It is a fair way to arrive at results. The rule is based upon the proposition that the illegal votes have gone into the boxes without the fault of either candidate. If these illegal votes can be separated from the legal ones, so that the number is substantially ascertained, then the poll is too large by exactly that number, and they must be cast out. In casting them out, the rule laid down by the court below is sustained by McCrary, Elect. (3d Ed.) § 460, where it is said: “Of 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.” In 6 Am. & Eng. Enc. Law, p. 353, it is said: “Where more ballots are found in the ballot box than there are names on the poll list, the statutes of many of the states require the officers of election to draw out enough ballots, without seeing them, to make the number equal to that of the voters. And, where they have not done this, it is probable that no other mode would be preferable **489 to that of deducting from each candidate a number of votes proportioned to his total vote, compared with the aggregate vote of the precinct;” and the following cases are cited: Gibbons v. Shepard, 2 Brewst. 128; Finley v. Walls, 4 Cong. Elect. Cas. 367; Platte v. Goode, Id. 650. Our statute (section 174, How. St.) provides: “If the ballots in the box shall be found to exceed in number the whole number of names of electors on the poll list, they shall be replaced in the box, and one of the inspectors shall publicly draw out and destroy so many ballots therefrom unopened as shall be equal to such excess.” Mr. Justice Cooley, in speaking of this provision of the statute in People v. Cicott, 16 Mich. 322, says: “As each ballot is usually one of a number designed to *557 be allowed to particular candidates, and counted against others given to other candidates, the drawing may still work no injustice, since each candidate will probably lose by it a number proportionate to the relative number of ballots appearing for him in the box, and thus the relative proportions will be preserved.” This rule, he says, “is based upon the doctrine of probabilities.” While we have no statute directing the mode of apportionment laid down by the court below, yet the rule, we think, is one which does no injustice to either candidate, and in the end carries into effect, as nearly as may be, the will of the people as expressed at the polls.

4. But one further question need be discussed. It is contended by the respondent that the court erred in ruling that the relator had the opening and closing in putting in the proofs and in the argument to the jury. We think there was no error in this. The burden of proof was upon the relator to establish his title to the office. In the proceeding, the relator prosecutes and the respondent defends. We think the rule is that the right to open and close belongs to the party who seeks to alter the existing state of things. as stated by Thomp. Trials, § 237. Judgment must be entered, finding the relator entitled to the office, and of ouster against the respondent.