| Me. | Jan 24, 1893
In quo warranto, a defendant may be summoned to show by what authority he holds an office. The burden of showing his title to the office is upon him. He usually sustains it by showing his certificate of election, commission or' other document under which he claims the office. When these proofs are shown, regular inform, coming from the proper authority, the title to the office is prima, fade shown; and, until such evidence is impeached, it stands good. It may be impeached in various ways. It may be shown incorrect, if the office be elective, by proving illegal votes to have been cast. In such case, the proof must go further. It must show a sufficient number of such votes to change the result, else the certificate still shows a valid choice, and the certificate is good until overthrown. It may be impeached by evidence that it is fraud
In the present case, the defendant answered that he was lawfully elected Mayor of Lewiston. He pleads the usual certificate of election to the office and his qualification thereto and entry into the same. The certificates, however, show that without the vote of ward five he was not elected.
The relator, among other things, replied that the certificate of votes cast in ward five was false and fraudulent, and that without the vote of ward five, according to the certificate, the defendant was not elected to said office.
Under these pleadings the relator offered to prove, among other things, that the ward officers of ward five " falsely and fraudulently conducted the election proceedings in said election, so as to return for said respondent a larger number of votes than was actually cast for himthat they " fraudulently made out and returned to the city clerk a false certificate of the number of ballots legally cast in said election.”
The presiding justice, thereupon, inquired of the relator’s counsel "if they claimed to be able to prove specific instances of illegal votes cast for the respondent, enough in number to equal or exceed his apparent majority, or if they were prepared to prove the number of legal ballots actually cast in that election.” The counsel replied "that they were not, and claimed that, upon proof of the frauds alleged as set forth in the foregoing offers to prove, the burden of proof would then be upon the respondent to prove that he received a majority of the actual legal ballots cast in that election, or the actual state of the ballots.” This burden was upon the defendant all the time, and
The presiding justice ruled that "the burden was on the relat- or to show a sufficient number of fraudulent or illegal votes to overcome the defendant’s majority, as shown in the returns, and that inasmuch as it appeared from the statement of facts made by the relator’s counsel that the relator was unable to show that number of fraudulent votes, no useful purpose could be subserved by the introduction of the evidence, and that the petition should therefore be dismissed.”
This ruling appears to relate to evidence sufficient to overcome honest returns, and is correct in that particular; but it fails to deal with false returns. The presiding justice doubtless assumed that the relator’s counsel did not rely upon showing fraudulent and false returns in ward five, leaving defendant without any proof of the vote in that ward, and, therefore, not shown to have been elected. But, on the other hand, relator’s counsel, in his answer to the court, did rely upon showing fraudulent returns in ward five, and claimed, in substance, that, oil proof of that fact, he would be entitled to judgment; and so he would have been, unless defendant could otherwise show a legal vote in his favor sufficient to elect him. The presiding justice should have called for proof of the fraudulent returns in ward five, instead of dismissing the petition. This was error.
Exceptions sustained.