Under this act the plaintiff society was taxed in 1880 for the excess over $10,000 in value of its house of worship. It now petitions for the abatement of the tax on the ground of the unconstitutionality of the law under which the assessment was made. No other question is raised by the petition.

The power of taxation, as a part of the supreme power of the State, is recognized and defined in the Constitution. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty and property. He is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary, or an equivalent." Bill of Rights, art. 12.

"Full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this Constitution, as they may judge for the benefit and welfare of this State, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof; *** and to impose and levy proportional and reasonable assessments, rates and taxes upon all the inhabitants of and residents within the State, and upon all estates within the same." Const., art. 5.

"And while the public charges of government or any part thereof shall be assessed on polls and estates, in the manner that has heretofore been practiced, in order that such assessments may be made with equality, there shall be a valuation of the estates within the State taken anew once in every five years at least, and as much oftener as the General Court shall order." Const., art. 6.

In these provisions the framers of the Constitution not only recognized the necessity of the sovereign power of taxation in the State, but lodged that power in the representative body of the people and limited it to reasonably equal and proportional assessments upon all the inhabitants and all the estates within the State. The supreme power existing, it was left to be exercised in as full and free a manner as was consistent with the grant, limited only to equality and proportion in assessment, and to the Constitution and laws of the United States. Opinion of the Justices, 4 N. H. 565.

No exclusion of any individuals, classes or property of any kind was made, but it was explicitly set forth that "every member of the community" "is bound to contribute his share," and that the Legislature had "full power and authority" to impose the "proportional and reasonable assessments "" upon "all the inhabitants and residents" and "all the estates" within the State.

Under such a grant of power, every species of property within the State is taxable. So far as exercising

the mere power to tax is in question even public property, whether of the State or municipality, falls under it, although from the nature of things and by necessary implication such property is exempt from taxes which if imposed would render necessary an increase in the public burden equal to the imposition.

The public worship of God and public instruction in morality and religion were recognized in the Bill of Rights in the Constitutions of 1784, 1792 and 1876, as "giving the best and greatest security to government;" and to promote these the Legislature is empowered "to authorize, from time to time, the several towns, parishes, bodies corporate or religious societies within this State, to make adequate provision at their own expense for the support of public Protestant teachers of piety, religion and morality." Bill of Rights, art. 6. Prior to and at the time of the adoption of the Constitutions of 1784 and 1792, public religious worship was very generally supported by a tax laid by the several towns. The town, in fact, was the parish or religious society which by authority of legislative acts furnished the meeting-house and contracted with aud paid the minister. The provincial statute of 1714 empowered towns to choose ministers and raise money by tax for their support, subject to the right and liberty of conscience. The same power of enabling towns to support public worship by means of a tax was fully set forth in section 10 of the act of February 8, 1791, entitled "An act for regulating towns and the choice of town officers," and which provided that the legal voters, at any regular meeting of the town, might, agreeably to the Constitution, "grant and vote such sum or sums of money as they should judge necessary for the settlement, maintenance and support of the ministry, schools, meeting-houses, the maintenance of the poor, for laying out and repairing highways, for building and repairing bridges, and for all the necessary charges arising within the said town, to be assessed on the polls and estates in the same town as the law directs."

The support of the ministry and of houses of public worship was then on the same footing as that of schools, highways and the support of the poor. With a gradual change arising from the multiplying of religious sects and the larger exercise of freedom of opinion, the system of supporting religious worship through the parochial functions of towns was by degrees abandoned, though authorized by law, until the act of 1819 repealed section 10 of the act of 1791, and empowered religious societies of every Christian sect "to raise money by taxes upon the polls and ratable estate of the members" for maintaining houses of public worship and supporting the ministry. By the act of July, 1827, entitled "An act empovering religious associations to assume and exercise colorate powers," religious societies, regularly organized with a name, clerk, records and public notice, were granted full corporate powers, with the right of perpetual succession and the enjoyment of all privileges and immunities, and the subjection to all liabilities incident to corporations of a similar nature.

After the act of 1819, the town no longer, by tax, built the meeting-house or supported the minister except in the performance of some contract before made. The religious society was or might be the parish, but the town was no longer the parish or the society. The Legislature, acting under the authority and carrying out the provisions of article 6 of the Bill of Rights, empowered the religious societies to support religious worship by taxation of their members, but did not empower towns to, nor has it ever done so since.

Giving to words their natural and ordinary signification, and gathering the intent of the framers of the Constitution and of the people who adopted it from the instrument itself, no language appears restraining the Legislature from taxing property devoted to the uses of public worship. That every member of the

community should contribute his share of the expense of that protection to life, liberty and property which the Bill of Rights gurrantees, is not a statement of the right of any person or of any property to exemption from taxation. The power of the Legislature "to levy and impose proportional and reasonable assessments, rates and taxes upon all the inhabitants and residents within the State and upon all the estates within the same,' cannot mean a restriction of the legislative power to a part of the "inhabitants and residents" and a part of the "estates" or property within the State. The language is too plain and explicit to need the aid of construction, and too certain to require extrinsic evidence of the intent of those who used it. The sixth article of the Bill of Rights, empowering the Legislature to authorize towns to tax themselves for the support of public religious worship, contains no hiut of exempting church property from taxation, and no language from which an intention to exempt it can be inferred. So long as towns, under the act of 1791, exercised parochial functions and raised taxes for supporting and maintaining houses of public worship, those places of worship were exempt from taxation as public property by the nature of things and not by the Constitution or by statute.

After the act of 1819, when towns were no longer subject to church rates and the whole management of public worship, including its support, was left to the religious societies authorized and organized for that purpose, the natural reason for exempting this property from taxation ceased. The custom of treating it as free from any public burden continued, though houses of public worship were not named among taxfreed property nor enumerated in any list of ratable property in any statute until 1842, when, by the Revised Statutes, meeting-houses were exempted by name from taxation. The same exemption is found in the General Statutes of 1867, and in the General Laws of 1878.

The argument from the long-continued custom of exempting property devoted to public religious worship from taxation, as a practical construction of the Constitution, would have weight if the question whether the exemption was enjoyed as a constitutional right or a legislative privilege subject to repeal, had till now been considered. So long as the privilege was enjoyed, the question of holding it by right or by grace was not thought of. The express exemptions by statute since 1842 show that the Legislature may have supposed that meeting-houses were taxable property unless exempted by express statute. Besides, where the language of the Constitution, as in this case, is unambiguous, to suffer a practical construction to prevail would be to defeat the manifest intention of the people who framed its provisions. Story on Const., § 407; Cooley on Const. Lim. 84; Evans v. Myers, 25 Penn. St. 116; Barnes v. First Parish in Falmouth, 6 Mass. 417; Union Pacific R. R. v. United States, 91 U. S. 72. An exemption not founded on a grant in the Constitution or on any contract in any charter or legislative act is not prescriptively established by enjoyment, however long continued. No prescription runs against the sovereign, nor does the State, by omission to use, waive or lose the right to exercise its supreme power, and the citizen can have no vested right in the continuance of any statute of general exemptions. Com. v. Bird, 12 Mass. 443; Bragg v. People, 78 Ill. 328; Moore v. Cass, 10 Kan. 288; Murphy v. People, 37 Ill. 447; State v. Miller, 7 Blatchf. 35; State v. Quimby, 51 Me. 395; State v. Wright, 53 id. 328; People v. Roper, 35 N. Y. 629; Com. of Excise v. Boice, 34 id. 637; Brick Presb. Church v. Mayor, 5 Cow. 538; Christ's Church v. Philadelphia, 24 How. 30; E. Saginaw Man. Co. v. E. Saginaw, 13 Wall. 373.

The plaintiff claims the right to exemption from the tax, and consequent abatement, on the ground that the right of exemption rests in a contract either in the

Constitution or in subsequent legislation or in both, and inviolate by the Constitution of the United States. It is unquestionable that an agreement by a State, for a consideration received or supposed to be received, that certain property rights or franchises shall be exempt from taxation, is a contract protected by the provision of the Federal Constitution forbidding a State to pass any law impairing the obligation of contracts. New Jersey v. Wilson, 7 Cr. 164; Gordon v. Appeal Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 id. 369; Home of the Friendless v. Rouse, 8 Wall. 430; Hardy v. Waltham, 7 Pick. 108; Atwater v. Woodbridge, 6 Conn. 223; Osborn v. Humphrey, 7 id. 335; Armington v. Barnet, 15 Vt. 751; Railroad v. Parcher, 14 Me. 297; Opinion of Justices, N. H. Laws, 1879, 424; Cooley on Const. Lim. 342, 343.

But to give a law of general exemption from taxation the character of an irrepealable contract, there must be a consideration received by the State; for an exemption made as a privilege merely may be revoked at any time (Christ's Church v. Philadelphia, supra; Brainerd v. Colchester, 31 Conn. 410) and the intention to relinquish the sovereign prerogative of taxation must be distinctly manifested. Providence Bank v. Billings, 4 Pet. 561; Herrick v. Randolph, 13 Vt. 531; People v. Com. of Taxes, 47 N. Y. 501; Lord v. Litchfield, 36 Conn.

Neither in the sixth article of the Bill of Rights nor elsewhere in the Constitution nor in the acts of 1791, 1819 and 1827 is there any express contract of exemption from taxation or any manifest intention on the part of the Legislature to make such a contract. Nor do the statutes of 1842, 1867 and 1878, expressly exempting meeting-houses from taxation, indicate any design to make a contract irrepealable and inviolable. In language and by relation they are general exemptions of a particular class of property, which the Legislature has made and which it may unmake by repeal. In these exemptions there is no vested right which can support the idea of a contract binding on succeeding Legislatures and irrepealable. Hospital v. Philadel phia, 24 Penn. St. 229; Christ's Church v. Philadelphia, 24 How. 300; Cooley on Taxation, 53, 54, 145, 146.

We decide that the Constitution does not exempt church property from taxation. Whether exemption of church property is constitutional is a question we do not decide, because it is not raised by the case. The plaintiff is not in a situation to object to exemption. It cannot claim that it shall not pay any tax because $10,000 of its property is not taxed.

Case discharged..

ELECTION TO PUBLIC OFFICE - JURISDICTION OF COURT-INFORMALITIES DO NOT INVALIDATE.

MAINE SUPREME JUDICIAL COURT, AUGUST 10, 1880.

PRINCE V. SKILLIN.

All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the Legislature. There is, with this exception, no vested right in an office or its salary.

The court is bound to take judicial notice of the doings of the executive and legislative departments of the government, and of historical facts of public notoriety passing in our midst.

The decision of the governor and council as a canvassing board does not constitute an estoppel upon other branches of the government.

The real title to an elective office depends upon the votes cast. The underlying principle is that the election and not the return is the foundation of the right to such an office. Where by the decision of the canvassing board, 6,311 voters were disfranchised because two ballots were returned as 66 scattering," ," which if added to the number received by

any of the persons voted for would not change the result, and which from an amended return were shown to have been thrown for William B. Skillings, held, that such decision was at war with the law of the land, the rights of parties, the will of the people and the principles upon which alone a republican government can rest.

not put the legal officer in his place. It is insufficient to redress the wrongs of one whose rights have been violated.

To restore a person to an office from which he has been unjustly removed or unlawfully excluded, the proper process is by mandamus. By this, the rights

states the case.

Ardon W. Coombs, for petitioner.

Bion Bradbury, L. D. M. Sweat and Clifford & Clifford, for respondent.

APPLETON, C. J. The plaintiff, claiming to have been duly elected county commissioner for the county of Cumberland, brings this bill against the defendant whom he alleges to have been wrongfully declared elected to that office, when in fact he was not so elected.

This proceeding is under and by virtue of chapter 198 of the Acts of 1880, entitled "An act providing for the trials of causes involving the rights of parties to hold public offices."

The processes by which rights are to be established and wrongs redressed are within and subject to legislative control. Old forms and modes of procedure may be abolished and new ones established.

All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the Legislature. There is, with the above exception, no vested right in an office or its salary. The office may be abolished. The mode of appointment may be changed. The length of time of official existence may be shortened. The compensation for official services may be diminished. Farwell v. Rockland, 62 Me. 298; Butler v. Pennsylvania, 10 How. (U. S.) 403; Barker v. Pittsburgh, 4 Barr. 51; Conner v. New York, 1 Seld. 291; Taft v. Adams, 3 Gray, 126.

The act, chapter 198 of the Acts of 1880, was passed to enable parties duly elected to office but not declared to be so elected, to contest their rights before a judicial tribunal. The defendant was declared elected to the office in controversy by the canvassing board of the State. The allegations in the bill are that errors occurred in the doings and proceedings of the board, and that upon a fair and honest count the plaintiff was duly elected, but that the defendant has usurped the office to which he was so elected. "When one is charged with usurping an office in the Commonwealth, there must be," remarks the court in Com. v. Fowler, 10 Mass. 290, "authority in this court to inquire into the truth of the charge.' This act gives a remedy in case of an erroneous or fraudulent count by the canvassing board. It will hardly be contended that if by errors of computation, throwing out legal returns or counting illegal ones, a candidate not duly elected is wrongfully declared to be elected, there should not be some remedy provided for the party actually elected, by which the wrong done may be corrected. If the error is not subject to correction, then the canvassing board in the exercise of irresponsible power have full and absolute control of the government and may effectually stifle the voice of the people according to their sovereign will and pleasure.

Before the passage of the act under consideration, the only existing process by which right of one unlawfully holding an office could be inquired into, was by quo warranto. This writ issues in behalf of the State against one who claims or usurps an office to which he is not entitled, to inquire by what authority he supports his claim or sustains his right. The proceeding is instituted by the attorney-general on his own motion or at the relation of any person, but on his official responsibility. It lies against an officer appointed by the governor and counsel or elected by the people. It removes the illegal incumbent of an office, but it does

illegally withheld, may be enforced. Strong, petitioner, 20 Pick. 497.

By quo warranto the intruder is ejected. By mandamus the legal officer is put in his place. The act, chapter 198, accomplishes by one and the same process the objects contemplated by both these results. It ousts the unlawful incumbent. It gives the rightful claimant the office to which he is entitled. It affords a speedy and effectual remedy instead of the tedious and dilatory proceedings of the common law.

It is insisted that this bill for various reasons cannot be sustained. The grounds of objection to its maintenance we propose to examine.

1. The respondent contended "that the Legislature which passed the act authorizing this and the governor approving it, could not rightfully do so because there was a prior de facto Legislature with a de facto governor, as set forth in the respondent's answer, not ousted by any competent tribunal."

The act in question was passed by an organized and acting Legislature, approved by the governor and comes before us with all the indicia of validity by which any act of any past Legislature is or can be evidenced.

When there are two conflicting Legislatures, each claiming of right to exercise legislative functions, it is for the court to determine by which body legislative authority can be lawfully exercised. In answer to inquiries made by certain gentlemen claiming official position under date of January 23, 1880 (70 Me. 582), this court used the following language: "When different bodies of men, each claiming to be and to exercise the functions of the legislative department of the State, appear, each asserting their titles to be regarded as the law-givers for the people, it is the obvious duty of the judicial department, who must inevitably at no distant day be called to pass upon the validity of the laws that may be enacted by the respective claimants to legislative authority, to inquire and ascertain for themselves, with or without questions presented by the claimants, which of those bodies lawfully represents the people from whom they derive their power. There can be but one lawful Legislature. The court must know for itself whose enactments it will recognize as laws of binding force, whose levies of taxes it will enforce when brought judicially before it, whose choice of a prosecuting officer before the court it will respect. In a thousand ways it becomes essential that the court should forthwith ascertain and take judicial cognizance of the question: Which is the true Legislature?"

We are bound to take judicial notice of the doings of the executive and legislative departments of the government when called upon by proper authorities to pass upon their validity. We are bound to take judicial notice of historical facts, matters of public notoriety and interest passing in our midst. These views are in full accord with the decisions of our highest tribunals. In Swinnerton v. Columbian Ins. Co., 37 N. Y. 188, it was objected that there was no evidence of a civil war. "This objection," observes Hunt, J., "I do not consider a sound one. The rule I take to be this: That matters of public history affecting the whole people are judicially taken notice of by the courts; that no evidence need be produced to establish them; that the court in ascertaining them resort to such documents of reference as may be at hand and as may be worthy of confidence. Thus in the prize cases already cited (2 Black, 667) the court use this language: The actual existence of civil war is a fact in our domestic

history which the court is bound to notice and to know.' There the general facts connected with the history of the case seem to have been assumed as within the judicial cognizance of the court. Greenleaf, in his work on Evidence, volume 1, section 6, says courts will also judicially recognize the political constitution or frame of their own government; its essential political agents or public officers sharing in its regular administration; and its essential and regular political operations, powers and actions. Thus notice is taken by all tribunals of the accession of the chief executive of the Nation or State, under what authority they act; his powers and privileges, etc. ** * the sittings of the Legislature and its established and usual course of proceedings. * ** * In fine, courts will take notice of whatever ought to be generally known within the limits of their jurisdiction. In all these and the like cases, when the memory of the judge is at fault he resorts to such documents of reference as may be at hand, and he may deem worthy of confidence.' It is the duty of the court to know county officers. Farley v. McConnel, 7 Lans. 428. Much more the governor and Legislature. State v. Minnick, 15 Iowa, 123."

After a careful consideration of the grave and important questions proposed by the governor, the rightful Legislature and a body of gentlemen claiming, but without right, to be a Legislature, this court, in its several answers of January last, announced the result to which it had arrived; that the Legislature by which the act under discussion was passed was the Legislature to whose acts the obedience of the people is due. In the correctness of the conclusions which were then reached, and in the principles and reasons upon which those conclusions are based, we rest in perfect confidence.

To the same general effect are the cases of Woods v. Wilder, 43 N. Y. 164; Cuyler v. Ferrill, 1 Abb. (U. S.) 169; Rice v. Shook, 27 Ark. 137; Killebrew v. Murphy, 3 Heisk. (Tenn.) 546; Division of Howard Co., 15 Kan. 194; Turner v. Patton, 49 Ala. 406; Ashley v. Martin, 50 id. 537; Smith v. Speed, id. 276; Andrews v. Knox Co., 70 Ill. 65; Douthitt v. Sinson, 63 Mo. 268; Foscùe v. Lyon, 55 Ala. 440.

The body of men which the counsel for the defendant terms by courtesy a de facto Legislature, though its house was composed of men who were and who were not elected, both classes not constituting a quorum, and of a senate a part of whom, less than a quorum, were duly elected, and a part were not elected, could not legally act as legislative bodies. While this condition of affairs remained there was no legal Legislature. The greater portion of the members of the bodies thus illegally constituted subsequently took their seats respectively in the rightful house and senate-a house and senate composed of members unquestionably elected. They participated in its legislative action until its final adjournment. They received and acknowledged the receipt of the compensation to which by law they were entitled as members of the Legislature. There was no other body claiming to exercise legislative functions. What the counsel calls the de facto Legislature became merged into the rightful Legislature, by which a governor was chosen in the accustomed manner, who entered upon and is now discharging, without interference or obstruction, the duties of that office. All this is well known as matter of current history, as well as by the legislative journals.

The offered proof was properly excluded. It is immaterial whether or not at some past time there was a de facto Legislature or a de facto governor - inasmuch as neither was such de jure - and as the rightful Legislature was not interfered with in the exercise of its legitimate powers, and the rightful governor is not disturbed in the discharge of his official duties. The

acting Legislature and the acting governor are both de facto aud de jure the Legislature and governor of the State and to be recognized as such.

2. It is claimed that the decision of the governor and council acted as a final canvassing board, and that their final action constitutes an estoppel upon all other branches of the government, except the houses of the Legislature in regard to the membership of those bodies.

This is not so. The object of all investigations is to arrive at true results. The canvassing board, so far as relates to county commissioners, are limited and restricted to what appears by the returns, except that by Revised Statutes, chapter 78, section 5, and chapter 212 of the acts of 1877, "they may receive testimony on oath to prove that the return from any town does not agree with the record of the votes of such town or the number of votes or the names of the persons voted for and to prove which of them is correct; and the return when found to be erroneous may be corrected by the record," and the governor and council are required to count and declare for any person all votes intentionally cast for such person, although his name on the ballot is misspelled or written with only the initial or initials of his Christian name or names; and they may hear testimony upon oath in relation to such votes in order to get at the intention of the electors and decide accordingly." But they are nowhere authorized to extend their inquiries beyond these limits -to inquire into the validity of meetings - whether or not votes were cast by aliens or minors or any of the various questions involving the validity of the result. Their judgment is not made conclusive. In case of senators and repressentatives, the final determination rests with the senate and house. So in reference to county officers, the courts in the last resort must determine the rights of the parties. If it were not so, if the canvassing board erred in their computations-if they should willfully or ignorantly disregard the law-rejecting legal and valid returns and receiving and acting upon illegal and invalid returns, there would be no remedy for the party duly elected. "If," say the court, in their opinion, 25 Maine, 570, "the Legislature had deemed it expedient, and had actually intended to constitute the governor and council judges generally of the election of county officers, it would have been easy for them to have been explicit to that effect; not having done so, it must be presumed that nothing of the kind was intended." It is abundantly obvious this must be so, since the right of full investigation is withheld from them.

County commissioners hold their office by popular election. If one not legally elected is erroneously declared to be elected, the will of the people is disregarded. An usurper holds an office to which he has no right. "The usurpation of an office is not an invasion of executive prerogative," observes Nott, J., in State v. Deliesseline, 1 McCord, 52, "but of the rights of the people; and the only method by which these rights can be protected, is through the instrumentality of the courts of justice."

In accordance with these views it has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is only prima facie evidence, that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises, will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board. People v. Cook, 8 N. Y. 67; People v. Vail, 20 Wend. 12; State v. Governor, 1 Dutch. 348; People v. Thacher, 55 N. Y. 525. The series of opinions of this court from that of 25 Maine, 568, to the present time, concur in the conclusion that the action of the governor and council, so far as relates to all matters pertaining to the case under consideration, in canvassing the returns, is purely

ministerial, and is to be confined strictly within the bounds of the Constitution and the statutes enacted in furtherance of the Constitution.

The underlying principle is that the election and not the return is the foundation of the right to an elective office, and hence it has been held competent to go behind the ballot box, and purge the returns by proof that votes were received and counted, which were cast by persous not qualified to vote. People v. Pease, 27 N. Y. 45. "Freedom of inquiry in investigating the title to office," observes Andrews, J., in People v. Judson, 55 N. Y. 531, "tends to secure fairness in the conduct of elections, faithfulness and integrity on the part of returning officers, and it weakens the motive to fraud or violence by diminishing the chances that they may prove successful in effecting the objects for which they are usually employed."

3. The ground is taken "that the vote of the city of Portland was rightly rejected as illegal by the governor and council, the return thereof not being in accordance with the statute, in that it did not contain the names of all the candidates voted for with the number of votes set against them."

It is conceded that if the vote of Portland is to be counted, the plaintiff was duly elected. The whole number of votes cast was six thousand three hundred and thirteen, of which two were returned as scattering.

None of the votes of the city of Portland were counted. They were all thrown out. Why? Because the ward meetings were not regularly notified? Because the ward meetings were not legally organized? Because those not qualified electors were permitted to vote? Because there was fraud or intimidation at the meeting? Because the votes of qualified voters were rejected? Because the votes were not receive, sorted, counted and declared in open ward meeting? Because a fair record of the result was not seasonably made? Because the returns duly sealed and attested were not transmitted to the secretary of State within the time required? Because of any informality, great or small? No. None of these causes were pretended-much less proved, but because of the number of votes cast, two were returned as scattering, that is, because two wrote " scattering" on their ballots or because two voted for candidates not voted for by anybody else, and the clerk returned them as scattering instead of giving the names of persons for whom the votes were cast. Thus, and for such cause, 6,311 voters, being over a third of the voters of the county of Cumber land, were disfranchised -for they were equally disfranchised whether they voted for one candidate or the other. This disfranchisement was for no neglect or omission of theirs.

This is a government of the people. Their will as expressed by the ballot is what is to be ascertained and declared. To disfranchise six thousand three hundred and eleven voters because two ballots were returned as scattering, is a novel mode of giving expression to the popular will. If the citizens voting can have their votes nullified for such cause, any voter by writing "scattering" on his ballot, or any clerk by returning a vote or votes under this head, may annihilate a majority however large. No man can be sure his vote will be effective.

The word "scattering," written on a ballot, indicates the name of an individual or it does not. If a name, then it should be counted. If it is not the name of an individual, then perhaps it may be regarded as a blank vote. It is, at any rate, a ballot. It is provided by Revised Statutes, chapter 4, section 32, as amended by chapter 212 of the acts of 1877, that "in order to determine the result of any election by ballot, the number of persons who voted at such election, shall first be ascertained by counting the whole number of ballots given in, which shall be distinctly stated and re

corded." The whole number of ballots counted, including the votes returned "scattering," the petitioner was most assuredly elected; for in the case under consideration, these votes. however added or subtracted, would not have changed the result.

The office of county commissioner is one created by the statute, not by the Constitution. As a canvassing board, the governor and council act in relation to this office under Revised Statutes, chapter 78, section 5, as amended by chapter 212 of the acts of 1877, and by that act the whole number of ballots given should have been counted. Had they been so counted the plaintiff's election was assured.

The rule obtains in every State, that an election is not to be set aside and declared void, merely because certain illegal votes were received, which do not change the result of the election. People v. Tuthill, 31 N. Y. 550; Judkins v. Hill, 50 N. H. 140; School District v. Gibbs, 2 Cush. 39. In Ex parte Murphy, 7 Cow. 153, two ballots were put in the box on the names of two persons who were formerly voters, but who had died some weeks before the election. "To warrant the setting aside the election," the court observes, "it must appear affirmatively, that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes were received will not vitiate an election." The extra vote should never be rejected, when it is possible to ascertain the fraudulent vote. Mann v. Cassidy, 1 Brewster (Penn.), 32. In an action to determine the right to an office, the court may look beyond the returns and even the ballotboxes, if necessary, to ascertain the truth. People v. Cook, 14 Barb. 259.

Now there is no allegation whatever that illegal or fraudulent votes were cast. Whether the votes returned as scattering were cast by persons not authorized to vote, or fraudulently cast, or for a candidate ineligible, or erroneously returned as scattering by mistake or fraud, is immaterial, inasmuch as they did not change the result, the petitioner having a plurality of over six hundred votes should have been declared elected.

It is proper to add that the amended return shows the names for whom the votes counted as scattering were given to wit: William B. Skillings. So that, in truth, there remains no conceivable ground upon which the respondent can claim to hold over.

The decision of the canvassing board was at war with the law of the land, the rights of parties, the will of the people and the principles upon which alone a republican government can rest.

Judgment for the petitioners.

STATUTE OF LIMITATIONS AND NEW PROMISE.

MAINE SUPREME JUDICIAL COURT, AUGUST 4, 1880.

MATTOCKS v. CHADWICK.*

When a new promise is relied on to take a debt out of the operation of the statute of limitations, and the new promise is a conditional one, the plaintiff cannot recover unless he proves performance of the condition. Proof of promise only is not sufficient.

A promise to settle a demand "when I was [am] able" is not sufficient to take the case out of the operations of the statute of limitations without proof of the defendant's ability to pay.

ACTION upon a promissory note. Defendant, in ad

dition to the general issue, pleaded the statute of limitations. Plaintiff claimed that the debt was taken out of the operation of the statute by a promise in writing to pay the same which was contained in a let* To appear in 71 Maine Reports.