the title of the office cannot be collaterally inquired. into." Exactly the same point was decided in the same way in the case of Weeks vs. Ellis, [2 Barbour, 324,] where a justice of the peace had entered upon the duties of his office without taking the oath prescribed by law. And so, likewise, in the case of Keyser vs. Mc Kisson, [2 Rawle, 139,] it was held that the failure. of county commissioners to take the oath prescribed by the constitution of Pennsylvania did not invalidate their acts as such, where the public or third persons were concerned. So, in the case of McGregor vs. Balch, [14 Vermont, 428] it was held that, although a person could not legally hold the office of justice of the peace at all while holding the office of assistant postmaster under the United States, yet, having entered the former office under the forms of law, he was a justice of the peace de facto, and his acts as such were valid as to third persons and the public. § 80. A mere usurper in an office can have no authority, and can perform no valid official act. It is enough if he possess color of authority, but without this, his acts are void even as to third parties and the public. It was accordingly held that where certain persons were chosen county officers in an unorganized county in a territory, by a public meeting without the shadow of legal right or authority, and commissioned as such by the governor, who also acted without any color of right or authority, they were usurpers, and that an election held under their authority was void. [Daily vs. Estabrook, 1 Purtlett 299.] In the same case the rule was laid down that no valid election can be held in an unorganized county,—and that a county cannot be considered as organized until there has been an election of county officers. § 81. It is well settled that the duties of canvassing officers are purely ministerial, and extend only to the casting up of the votes and awarding the certificate to the person having the highest number; they have no judicial power. In State vs. Steers, (44 Mo., 223,) which was a case in which the canvassing board had undertaken to throw out the returns from one voting precinct for an alleged informality, the court said: When a ministerial officer leaves his proper sphere, and attempts to exercise judicial functions, he is exceeding the limits of the law, and guilty of usurpation." And again, "To permit a mere ministerial officer arbitrarily to reject returns, at his mere caprice or pleasure, is to infringe or destroy the rights of parties without notice or opportunity to be heard, a thing which the law abhors and prohibits." § 82. But of course it does not follow from this doctrine that canvassing and return judges must receive and count whatever purports to be a return, whether it bears upon its face sufficient proof that it is such or not. The true rule is this: they must receive and count the votes as shown by the returns, and they cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented, as a return, and there is a question as to whether it is a return or not, they must decide that question from what appears upon the face of the paper itself. Thus, in New York, it has been held that the duties of the canvassers were "to attend at the proper office and calculate and ascertain the whole number of votes given at any election and certify the same to be a true canvass; this is not a judicial act, but merely ministerial; they have no power to controvert the votes of electors. [People vs. Van Slyck, 4 Conn. 297, 323.) To the same safe effect is the ruling in ex parte Heath, (3 Hill, 47.) § 83. And in Morgan vs. Quackenbush (22 Barb. 77) we find this language: "they, (the canvassers) are not at liberty to receive evidence of any thing outside of the returns themselves; their duty consists in a simple matter of arithmetic." See also, Thompson vs. Ewing, (1 Brewst. 77,) where it is laid down that the return judges cannot enquire into a question of fraud. See also, State vs. The Governor, 1 Dutch. N. 7. 348. Brown vs. O'Brien, 2 Ind. 483. State vs. Jones, 19 Ind. 365. People vs. Kilduff, 15 Ill., 500. People vs. Head. 25 Ill., 328. In the latter case the court say "they may probably judge whether the returns are in due form, but after that they can only compute the votes cast for the several candidates and declare the result." But in determining as to the form of the returns they must consider the substance, and not be too technical. If there is a substantial compliance with the law it is enough. §. 84 The doctrine that canvassing boards and return judges are ministerial officers possessing no discretionary or judicial power, is settled in nearly or quite all the States: Dishon vs. Smith, 10 Iowa, 212. Att'y General, vs. Barstow, 4 Wisconsin, 749. Marshall vs. Kerns, 2 Swan, Tennessee, 66. In Att'y Genl. vs. Barstow, supra, the Supreme Court of Wisconsin say that the canvassing officers "are to add up and certify by calculation the number of votes given for any office; they have no discretion to hear and take proof as to frauds, even if morally certain that monstrous frauds have been perpetrated." § 85. In Morgan vs. Quackenbush, [22 Barb., N. Y. 72,] this doctrine was again asserted. It was there held that it was the duty of the canvassing board to canvass the returns and declare the result, and that this was a purely ministerial act. They are judges of nothing, and not allowed to receive evidence of any thing outside of the returns themselves, and hence, they acted illegally in receiving affidavits of fraudulent practices at the polls and acting upon such evidence. It was, however, also held, that their determination, although based upon illegal evidence, must be received as prima facie evidence that the person declared elected was entitled to the office, and that in attempting afterwards to recanvass the vote and set aside their first certificate they transcended their authority, and assumed a pow er belonging only to a tribunal authorized to try cases of contested elections under the law. § 86. There are statutes in some of the States which expressly confer upon a board of canvassing officers the power to revise the returns of an election, to take proofs, and in their discretion, to reject such votes as they deem illegal. Such a statute exists in Texas, [See Giddings vs. Clark, 42d Congress,] and in Alabama. [See Norris vs. Handley do.,] and in Louisiana and Florida. Although this is an extraordinary, and a dangerous power, when placed in the hands of a board of this character, with such inadequate facilities for obtaining legal evidence and deciding upon questions of fraud; yet it seems that such statutes are not unconstitutional. And it has been held by the House of Representatives of the United States that the action of such a board, in pursuance of the power thus conferred, is prima facie correct and to be allowed to stand until shown by evidence to be illegal or unjust. [See cases last above cited.] § 87. The doctrine that the acts of an officer of election, within the scope of his authority, are presumed to be correct, is strongly stated and ably argued in Littell vs. Robins, (1 Bartlett, 138.) The rule is here placed upon two grounds, viz: first, that the presumption is always against the commission of a fraudulent or illegal act, and secondly, that the presumption is always in favor of the official acts of a sworn officer. § 88. In general, where a statute requires an official act to be done by a given day, for a public purpose, it must be construed as merely directory in re |