State Ex Rel. Hahn v. Stinson

MerrimoN, J.

The third ground of demurrer assigned is that it is not alleged in the complaint that the relator received a majority of the “legal votes” cast at the election, the result of which is in question.

The law does not allow any but such votes to be cast; and when the proper officers receive a vote in the way prescribed by law the presumption is that it is legal, and it must be so regarded and treated until the contrary shall be shown by some person who shall, in a proper action or proceeding for the purpose, allege its illegality. The relator alleges expressly, among other material things, that he received a majority of over two hundred of the votes cast in the county named, at the election. This is sufficient. The allegation that he received such majority implies a majority of the “ legal votes,” because, nothing to the contrary appearing, the votes cast were legal, and it is not necessary to do more than allege the vote cast according to its prima facie legal effect. On the trial, if an issue of fact shall be raised, it will be sufficient for the relator to show that he received a majority of the votes cast, and the burden will then be on the defendant to show that such votes, or any number of them, were for any cause illegal.

The allegation is appropriate to raise a proper issue, if the defendant shall see fit to raise it. It is always sufficient in pleading to allege matters and things according to their legal quality and effect, unless there shall be special reason for superadding something otherwise.

The law, as settled in Gatling v. Boone, decided at the present term, is applicable to and must be conclusive of this case adversely to the appellant. There is no error.

Affirmed.