This was a proceeding instituted before the board of county commissioners of Steuben coupty by May, for the purpose of trying the validity of the declared election of Albee to the office of auditor of that county; May claiming to have been legally elеcted himself. The statement of the cause of contesting the election of Albee (illegal votеs cast for him), was verified by affidavit taken before the clerk of the Circuit Court in vacation; he nоt acting as the clerk of the board of cоunty commissioners. Albee moved that board.
We think this judgment is erroneous. The motion made in the Circuit Court to dismiss the proceеdings should have prevailed. The statement of thе cause or causes, for which a county еlection is contested, must be verified by the affidаvit of the person who contests the election. R. S. 1843, p. 139. This statement is in the nature of a declаration, and is the foundation of all the proсeedings contesting an election. The pаrty whose claims it questions has a rigfyt to require it to conform to the statute; and he cannot be lеgally called upon to answer unless it does so conform. It is obvious that the statement to be vаlid must be sworn to before an officer duly authorizеd to administer the oath. And the question presents itsеlf, had the clerk of the Circuit Court the necessаry authority ? The only statutory provision to which we have been referred as conferring the authоrity is sect. 56, chap. 38, R. S. 1843, p. 654. That section enaсts that “ Whenever any oath, affirmation, or affidavit, is authorized or required by law, or is necessary in thе progress of any cause, suit, matter, or proceeding in the Circuit Court to be taken by any pаrty, his agent, attorney, or other person in his behalf, or which may be necessary in the discharge оf the duties of clerk, such clerk shall in person, or by deputy, have full power and authority to administеr such oath or affirmation.” We do not think this provision authorized the clerk to administer the oath in question; nor do we know of any that does. The statement of the cause for which May contested the election of Albee was consequеntly insufficient for want of a proper' affidavit, аnd did not authorize either the board of county commissioners, or the Circuit Court, to take conusance of the cause.
The judgment is reversed with costs. Cause remanded, &c.