Hunter v. Blackman ( 1880 )

Spencer, J.

The suit was upon motion of plaintiff himself confined to the prima facie case. On trial plaintiff admitted that the Board of Canvassers, organized under said Act, No. 1 of 1877, had returned and declared the defendant duly elected judge of the Ninth District. Thereby he admitted that the prima facie case was with the defendant, for the third section of the Act of January 8, 1877, provides “ that the canvass and return made by the Board herein constituted shall be prima facie evidence of the election of the candidate returned by them.”

The terms of this Act are imperative and make the return of this Board of Canvassers “ prima facie evidence of the election ” of the defendant who was returned by it. So far as Act 39 of 1873 establishes any contrary or different presumption, it is repealed by Act 1 of 1877, which declares “ that all laws and parts of laws contrary to and inconsistent with this Act be, and the same are hereby repealed.”

Under the view we have taken, we do not deem it necessary to pass upon the questions raised, as to whether said Act 39 is constitutional nor as to the extent to which it has been repealed by Acts 1 and 24 of 1877, nor as to the prescription of plaintiff’s action which has been pleaded in this court. It suffices to say that under plaintiff’s own admissions, and under his own view of Act 39, the prima facie case is clearly with the defendant.

Besides, if the question depended solely upon the two commissions offered in evidence in this case, in the absence of proof to the contrary the presumption is in favor of that bearing the latest date, the rule being that a sworn public officer like the Governor, must be supposed, until the contrary is shown, to have properly discharged his duty. See 16 A. 438; 19 A. 210.

If the plaintiff has any rights to said office, not barred by prescription, he may yet assert them by some proper proceedings, under which the merits can be tried, as we understand the judgment appealed from to be simply one of dismissal, operating as a non-suit.

Judgment affirmed.