¶1The ballots in this case have been preserved, and the evidence is conclusive that they have not been changed *52or tampered with. Having, therefore, been identified beyond all reasonable doubt, they are competent evidence, and controlling. The rule was correctly stated in Lorey v. Lynn, 31 Kas. 758, that “whenever the ballots can be properly identified, they are, of course, the best evidence — much better and more reliable than a mere abstract or summary of the same made by the election officers.” Upon a count of the ballots by the commissioners appointed by this court for that purpose, it appears that the plaintiff received at the city election on April 7, 1885, for justice of the peace 1,229 votes, and that H. S. Clark, the defendant, received only 1,217 votes. Our attention has been called to the ballots that were rejected by the commissioners; these have been carefully and critically examined by the court. Giving the defendant the benefit of all the ballots of which we have any doubt, the plaintiff still has a majority of six.
¶2It is the opinion of this court that the plaintiff was elected as justice of the peace of the city of Topeka at the city election held in said city on April 7,1885, and is now entitled to said office, and that the defendant was not elected to said office at said election. It is therefore the judgment of the court that the defendant be ousted and excluded from the office of justice of the peace of the city of Topeka, and that he be required to deliver over at once to the plaintiff, all books, papers and documents in his custody, or under his control, belonging to the office of justice of the peace of the city of Topeka; and that the plaintiff recover from the defendant all costs in ¿his behalf expended, taxed at $-, for which let execution issue.