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has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote.1

The Conduct of the Election.

The statutes of the different States point out specifically the mode in which elections shall be conducted; but, although there are great diversities of detail, the same general principles govern them all. As the execution of these statutes must very often fall to the hands of men unacquainted with the law and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance. Where an election is thus rendered irregular, whether the irregularity shall avoid it or not must depend generally upon the effect the failure to comply strictly with the law may have had in obstructing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish; and except

where they specifically provide that a thing shall be done [* 618] in the manner indicated and not otherwise, their pro

visious designed merely for the information and guidance of the officers must be regarded as directory only, and the election will not be defeated by a failure to comply with them, providing the irregularity has not hindered any who were entitled from exercising the right of suffrage, or rendered doubtful the evidences from which the result was to be declared. In a leading case the following irregularities were held not to vitiate the election: the accidental substitution of another book for the holy evangelists in the administration of an oath, both parties being ignorant of the error at the time; the holding of the election by persons who were not officers de jure, but who had colorable authority, and acted de facto in good faith; 2 the failure of the

1 Spriggins v. Houghton, 2 Scam. 377; State v. Robb, 17 Ind. 536; People v. Pease, 30 Barb. 588. And see People v. Gordon, 5 Call, 235; Chrisman v. Bruce, 1 Duvall, 63; Gillespie v. Palmer, 20 Wis. 544; Goetcheus v. Mathewson, 61 N. Y. 420.

2 As to what constitutes an officer de facto, the reader is referred to the careful opinion in State v. Carroll, 38 Conn. 449; s. c. 9 Am. Rep. 409. Also to Fowler v. Beebe, 9 Mass. 231; Tucker v. Aiken, 7 N. H. 131; Commonwealth v. McCombs, 56 Penn. St. 436; Ex parte Strang, 21 Ohio, N. §.

board of inspectors to appoint clerks of the election; the closing of the outer door of the room where the election was held at sundown, and then permitting the persons within the room to vote; it not appearing that legal voters were excluded by closing the door, or illegal allowed to vote; and the failure of the inspectors or clerks to take the prescribed oath of office. And it was said, in the same case, that any irregularity in conducting an election which does not deprive a legal elector of his vote, or admit a disqualified person to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election. This rule is an eminently proper one, and it

610; Kimball v. Alcorn, 45 Miss 151, and authorities referred to in these cases severally. Also Cooley on Taxation, 184-186; McCrary's Law of Elections, §§ 75-79.

1 People v. Cook, 14 Barb. 259, and 8 N. Y. 67. To the same effect, see Clifton v. Cook, 7 Ala. 114; Truehart v. Addicks, 2 Tex. 217; Dishon v. Smith, 10 Iowa, 212: AttorneyGeneral v. Ely, 4 Wis. 420; State v. Jones, 19 Ind. 356; People v. Higgins, 3 Mich. 233; Gorham v. Campbell, 2 Cal. 135; People v. Bates, 11 Mich. 362; Taylor v. Taylor, 10 Minn. 112; People v. McManus, 34 Barb. 620; Whipley v. McCune, 12 Cal. 352; Bourland v. Hildreth, 26 Cal. 161; Day v. Kent, 1 Oreg. 123; Piatt v. People, 29 Ill. 54; Ewing v. Filley, 43 Penn. St. 384; Howard v. Shields, 16 Ohio, N. s. 181; State v. Stumpf, 21 Wis. 579; McKinney v. O'Connor, 26 Tex. 5; Sprague v. Norway, 31 Cal. 173; Sheppard's Election Case, 77 Penn. St. 295; Wheelock's Election Case, 82 Penn. St. 297; Pike Co. v. Barnes, 51 Miss. 305. In Ex parte Heath, 3 Hill, 42, it was held, that, where the statute required the inspectors to certify the result of the election on the next day thereafter, or sooner, the certificate made the second day thereafter was

sufficient, the statute as to time being directory merely. In People v. McManus, 34 Barb. 620, it was held that an election was not made void by the fact that one of the three inspectors was by the statute disqualified from acting, by being a candidate at the election, the other two being qualified. In Sprague v. Norway, 31 Cal. 173, it was decided that where the judges of an election could not read, and for that reason a person who was not a member of the board took the ballots from the box, and read them to the tellers, at the request of the judges, the election was not affected by the irregularity. In several cases, and among others the following, the general principle is asserted that any irregularities or misconduct, not amounting to fraud, is not to be suffered to defeat an election unless it is made to appear that the result was thereby changed. Loomis v. Jackson, 6 W. Va. 613, 692; Morris v. Vanlaningham, 11 Kan. 269; Supervisors of Du Page v. People, 65 Ill. 360; Chicago v. People, 80 Ill. 496; People v. Wilson, 62 N. Y. 186. The failure to hold the election at the place appointed may not be fatal if no one lost his vote in consequence. Dale v. Irwin,

78 Ill. 170. And a candidate who participates in the election actually

*

furnishes a very satisfactory test as to what is essential and what not in election laws. 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

therefore as much void as if given viva voce. An election adjourned without warrant to another place, as well as an election held without the officers required by law, is void. Commonwealth v. County Commissioners, 5 Rawle, 75. An unauthorized adjournment of the election for dinner - it appearing to have been in good faith, and no one having been deprived of his vote thereby - will

not

defeat the election. Fry v. Booth, 19 Ohio, N. s. 25.

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.8

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.

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

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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.

3 Newcum v. Kirtley, 13 B. Monr. 515. See Burke v. Supervisors of Monroe, 4 W. Va. 371.

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