furnishes a very satisfactory test as to what is essential and what not in election laws.1 And where a party contests [* 619] an election on the ground of these or any similar irregularities, he ought to aver and be able to show that the result was affected by them.2 Time and place, however, are of the substance of every election,3 and a failure to comply with the law in these particulars is not generally to be treated as a mere irregularity. held, will not be allowed to question its validity on that ground People v. Waite, 70 Ill. 25. But where the law gave three hours for an election and the polls were closed in forty minutes, the proceedings were held invalid. State v. Wallem, 37 Iowa, 131. 1 This rule has certainly been applied with great liberality, in some cases. In People v. Higgins, 3 Mich. 233, it was held that the statute requiring ballots to be sealed up in a package, and then locked up in the ballot-box, with the orifice at the top sealed, was directory merely; and that ballots which had been kept in a locked box, but without the orifice closed or the ballots sealed up, were admissible in evidence in a contest for an office depending upon this election. This case was followed in People, v. Cicotte, 16 Mich. 283, and it was held that whether the ballots were more satisfactory evidence than the inspector's certificates, where a discrepancy appeared between them, was a question for the jury. In Morril v. Haines, 2 N. H. 246, the statute required State officers to be chosen by a check-list, and by delivery of the ballots to the moderator in person; and it was held that the requirement of a check-list was mandatory, and the election in the town was void if none was kept. The decision was put upon the ground that the checklist was provided as an important guard against indiscriminate and illegal voting, and the votes given by ballot without this protection were 2 Lanier v. Gallatas, 13 La. Ann. 175; People v. Cicotte, 16 Mich. 283; Taylor v. Taylor, 10 Minn. 107; Dobyns v. Weadon, 50 Ind. 298. 8 Dickey v. Hurlburt, 5 Cal. 343; Knowles v. Yeates, 31 Cal. 82. See p. *618, note. 4 The statute of Michigan requires the clerks of election to keep lists of the persons voting, and that at the close of the polls the first duty of the inspectors shall be to compare the lists with the number of votes in the box, and if the count of the latter exceeds the former, then to draw out unopened and destroy a sufficient number to make them correspond. In People v. Cicotte, 16 Mich. 283, it appeared that the inspectors in two wards of Detroit, where a surplus of votes had been found, had neglected this duty, and had counted all the votes without drawing out and destroying any. The surplus in the two wards was sixteen. The actual majority of one of the candidates over the other on the count as it stood (if certain other disputed votes were re What is a Sufficient Election. Unless the law under which the election is held expressly requires more, a plurality of the votes cast will be sufficient to elect, notwithstanding these may constitute but a small portion of those who are entitled to vote,1 and notwith- [* 620] standing the voters generally may have failed to take notice of the law requiring the election to be held.2 If several persons are to be chosen to the same office, the requisite number who shall stand highest on the list will be elected. But without such a plurality no one can be chosen to a public office; and it is held in many cases that if the person receiving the highest number of votes was ineligible, the votes cast for him will still be effectual so far as to prevent the opposing candidate being chosen, and the election must be considered as having failed.3 jected) would be four. It was held that this neglect of the inspectors did not invalidate the election; that had the votes been drawn out, the probability was that each candidate would lose a number proportioned to the whole number which he had in the box; and this being a probability which the statute providing for the drawing proceeded upon, the court should apply it afterwards, apportioning the excess of votes between the candidates in that proportion. 1 Augustin v. Eggleston, 12 La. Ann. 366; Gillespie v. Palmer, 20 Wis. 544. See also State v. Mayor, &c., of St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450. 2 People v. Hartwell, 12 Mich. 508. Even if the majority expressly dissent, yet if they do not vote, the election by the minority will be valid. Oldknow v. Wainwright, 1 W. Bl. 229; Rex v. Foxcroft, 2 Burr. 1017; Rex v. Withers, referred to in same case. Minority representation in certain cases has been introduced in New York, Pennsylvania, and Illinois, and the principle is likely to find favor elsewhere. 8 State v. Giles, 1 Chand. 112; Opinions of Judges, 38 Maine, 597; State v. Smith, 14 Wis. 497; Saunders v. Haynes, 13 Cal. 145; Fish v. Collens, 21 La. Ann. 289; Sublett v. Bedwell, 47 Miss. 266; s. c. 12 Am. Rep. 338; State v. Swearingen, 12 Geo. 24; Commonwealth v. McCluley, 56 Penn. St. 270; Matter of Corliss (Sup. Ct. R. I.), 16 Am. Law Reg. 15. See State v. Vail, 53 Mo. 97. In People v. Molliter, 23 Mich. 341, a minority candidate claimed the election on the ground that the votes cast for his opponent, though a majority, were ineffectual, because the name was abbreviated. Held, that they were at least effectual to preclude the election of a candidate who received a less number. But it has been held that if ineligibility is notorious, so that the electors must be deemed to have voted with full knowledge of it, the votes for an ineligible candidate must be declared void, and the next highest candidate The admission of illegal votes at an election will not necessarily defeat it; but to warrant its being set aside on that ground, it should appear that the result would have been different had they been excluded.1 And the fact that unqualified persons are allowed to enter the room, and participate in an election, does not justify legal voters in refusing to vote, and treating the election as void, but it will be held valid if the persons declared chosen had a plurality of the legal votes actually cast. So it is held that an exclusion of legal votes not fraudulently, but through error in judgment - will not defeat an election; notwithstanding the error in such a case is one which there was no mode of correcting, even by the aid of the courts, since it cannot be known with certainty afterwards how the excluded electors would have voted, and it would obviously be dangerous to receive and rely upon their subsequent statements as to their inten tions, after it is ascertained precisely what effect their [*621] * votes would have upon the result. If, however, the inspectors of election shall exclude legal voters, not because of honest error in judgment, but wilfully and corruptly, and to an extent that affects the result, or if by riots or otherwise legal voters are intimidated and prevented from voting, or for any other reasons the electors have not had opportunity for the expression of their sentiments through the ballot-box, the election should be set aside altogether, as having failed in the is chosen. This is the English doctrine: King v. Hawkins, 10 East, 211; 2 Dow. P. C. 124; King v. Parry, 14 East, 549; Gosling v. Veley, 7 Q. B. 406; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017; s. c. 1 Wm. Bl. 229; Reg. v. Cooks, 3 E. & B. 249; French v. Nolan, 2 Moak, 711. And see the following American cases: Price v. Baker, 41 Ind. 572; Hatcheson v. Tilder, 4 H. & McH. 279; Commonwealth v. Green, 4 Whart. 521; Gulick v. New, 14 Ind. 93; Carson v. McPhetridge, 15 Ind. 327; People v. Clute, 50 N. Y. 451; s. c. 10 Am. Rep. 508. It would seem that, if the law which creates the disqualification expressly declares all votes cast for the disqualified person void, they must be treated as mere blank votes, and cannot be counted for any purpose. 1 Ex parte Murphy, 7 Cow. 153; First Parish in Sudbury v. Stearns, 21 Pick. 148; Blandford School District v. Gibbs, 2 Cush. 39; People v. Cicotte, 16 Mich. 283; Judkins v. Hill, 50 N. H. 140. Votes received illegally will be rejected by the court in an action to try title to an office. State v. Hilmantel, 21 Wis. 566; Harbaugh v. Cicotte, 33 Mich. 241. 2 First Parish in Sudbury Stearns, 21 Pick. 148. v. 3 Newcum v. Kirtley, 13 B. Monr. 515. See Burke v. Supervisors of Monroe, 4 W. Va. 371. purpose for which it was called.1 Errors of judgment are inevitable, but fraud, intimidation, and violence the law can and should protect against. A mere casual affray, however, or accidental disturbance, without any intention of overawing or intimidating the electors, cannot be considered as affecting the freedom of the election; nor in any case would electors be justified in abandoning the ground for any light causes, or for improper interference by others where the officers continue in the discharge of their functions, and there is opportunity for the electors to vote.3 And, as we have already seen, a failure of an election in one precinct, or disorder or violence which prevent a return from that precinct, will not defeat the whole election, unless it appears that the votes which could not be returned in consequence of the violence would have changed the result. It is a little difficult at times to adopt the true mean between those things which should and those which should not defeat an election; for while on the one hand the law should seek to secure the due expression of his will by every legal voter, and guard against any irregularities or misconduct that may tend to prevent it, so, on the other hand, it is to be borne in mind that charges of irregularity and misconduct are easily made, and that the dangers from throwing elections open to be set aside or controlled by oral evidence, are perhaps as great as any in our system. An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election ; but as it is generally impossible to arrive at any greater certainty of * result by resort to oral evidence, public pol- [* 622] icy is best subserved by allowing the election to stand, 1 Where one receives a majority of all the votes cast, the opposing candidate cannot be declared elected on evidence that legal voters sufficient to change the result offered to vote for him, but were erroneously denied the right; but the election may be declared to have failed, and a new election be ordered. Renner v. Bennett, 21 Ohio, N. s. 431. See also Matter of Long Island R. R. Co., 19 2 Cush. Leg. Assemb. § 184. 8 See First Parish in Sudbury v. Stearns, 21 Pick. 148. 4 Ex parte Heath, 3 Hill, 42. See ante, p. *616 and note. and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future. The Canvass and the Return. If the election is purely a local one, the inspectors who have had charge of the election canvass the votes and declare the result. If, on the other hand, their district is one precinct of a larger district, they make return in writing of the election over which they have presided to the proper board of the larger district; and if the election is for State officers, this district board will transmit the result of the district canvass to the proper State board, who will declare the general result. In all this, the several boards act for the most part ministerially only, and are not vested with judicial powers to correct the errors and mistakes that may have occurred with any officer who preceded them in the performance of any duty connected with the election, or to pass upon any disputed fact which may affect the result. Each board is to receive the returns transmitted to it, if in due form, as correct, and is to ascertain and declare the result as shown by such returns; 2 and if other matters are introduced into the return than those which the law provides, they are to that extent unofficial, and such statements must be disregarded. If a district or State board of can 2 Ex parte Heath, 3 Hill, 42; Brower v. O'Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413; People v. Jones, 19 Ind. 357; Ballou v. York County Com'rs, 13 Shep. 491; Mayo v. Freeland, 10 Mo. 629; Thompson v. Circuit Judge, 9 Ala. 338; People v. Kilduff, 15 Ill. 492; O'Farrell v. Colby, 2 Minn. 180; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Morgan v. Quackenbush, 22 Barb. 72; Dishon v. Smith, 10 Iowa, 212; People v. Cook, 14 Barb. 259, and 8 N. Y. 67; Hartt v. Harvey, 32 Barb. 55; Attorney-General v. Barstow, 4 Wis. 567; Attorney-General v. Ely, 4 Wis. 420; State v. Governor, 1 Dutch. 331; State v. Clerk of Passaic, 1 Dutch. 354; Marshall v. Kerns, 2 Swan, 68; People v. Pease, 27 N. Y. 45; Phelps v. Schroder, 26 Ohio St. 549; State v. State Canvassers, 36 Wis. 498; Opinion of Justices, 53 N. H. 640; State v. Cavers, 22 Iowa, 343; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256; State v. Steers, 44 Mo. 223; Bacon v. York Co., 26 Me. 491; Taylor v. Taylor, 10 Minn. 107; Opinion of Justices, 64 Me. 588. 8 Ex parte Heath, 3 Hill, 42. Returns void on their face may be rejected. State v. State Canvassers, 36 Wis. 498. But, if not void on their face, the election board to which they are returned have no jurisdiction to go behind them and inquire into ques |