shall be at liberty to resign such office, though he may not have entered upon its duties or taken the requisite oath of office; and when any vacancy shall happen in the office of member of the council or house of representatives, by death, resignation, or otherwise, and a session of the legislature is to take place before the next annual election, the governor shall issue a writ of election, directed to the sheriff of the county, or district in which such vacancy shall happen, commanding him to notify the several judges in his county or district to hold a special election to fill such vacancy or vacancies, at a time appointed by the governor.

SEC. 32. When two or more counties are united in one council or representative district, or for the election of any officer, the clerks of the boards of county commissioners of their respective counties so joined, shall, at the time of canvassing the votes of an election proceed to canvass the votes of joint councilmen or representatives, or both, or any other officer; and shall immediately thereafter transmit each to the other county a certified abstract of all the votes cast in their county for such joint councilman and representative, or other officer; and the persons having the highest number of votes for the respective offices shall be declared duly elected, and shall receive a certificate of election from the recorder of the county first organized. In case that either of the counties so joined have not a board of county commissioners, then in that case the judges of election shall immediately after they shall have canvassed the votes, as in this act provided, seal up one set of the poll books, retaining the boxes with the ballots as herein provided, and immediately transmit such poll books to the clerk of the board of county commissioners of the county to which they are attached having the oldest organization, who shall immediately proceed to canvass the votes as in the other cases of election in his own county, and issue certificates of election to the persons found to be entitled thereto. The returns mentioned in this section may be sent by mail, express, or by some safe private conveyance, being securely sealed up, addressed to the clerk of the board of county commissioners, and indorsed on the back, "election returns" of county.

SEC. 33. There shall be allowed out of the county treasury of each county, to the several judges and clerks of election four dollars per diem, and to the person carrying the poll books from the place of election to the clerk's office, the sum of twenty cents per mile for going and returning, to be paid out of the county treasury.

SEC. 34. If any judge or clerk of an election, or any other person, in any manner concerned in conducting the election, shall corruptly violate any of the provisions of this act, he shall forfeit and pay to the county a sum not less than one thousand, nor more than five thousand dollars, and be imprisoned in the county jail

until such fine is paid. The same to be recovered by a civil action, in the name of the county commissioners of the proper county, for the use of common schools in said county.

SEC. 35. The term of all officers elected under this act shall begin on the first Monday of October next ensuing their election, unless some other express provision is made by law, except the district, county, or precinct officers other than councilmen and members of the assembly elected at the general election to be held on the second Monday of August, A.D. 1866, who shall enter upon their duties on the first Monday of January following.

SEC. 36. In all elections, the person having the highest number of votes for any office shall be deemed to have been elected.

SEC. 37. In counting the votes, the judges of the election shall disregard misspelling or abbreviations of the names of candidates for office, if it can be ascertained from such votes for whom they were intended.

OF THE MANNER OF CONTESTING THE ELECTION OF COUNTY, TOWN, DISTRICT, OR PRECINCT OFFICERS.

SEC. 38. All contests of county and precinct officers shall be tried in the proper county, and when any elector shall wish to contest such election, he shall file with the clerk of the board of county commissioners, within ten days after such person shall have been declared elected, a statement in writing, specifying the grounds of contest, verified by affidavit, and such clerk shall issue to the contestant a notice to appear at the time and place specified in the notice, before the probate court, which notice, with a copy of such statement, shall be delivered to the sheriff, who shall within five days serve the same on the contestee, by delivering to him a copy of such notice and statement, or by leaving it at his usual place of residence provided, that when a probate judge is a party to the contest, the cause shall be tried in the district court of the district in which such county is located.

SEC. 39. The probate court at the time specified in the notice, (and it shall appear by the sheriff's return that notice has been duly served on the contestee) shall proceed to try such contest. Each party shall be entitled to subpoenas, and subpoenas duces tecum as in ordinary cases at law; and the probate court shall hear and determine such contest in such manner as shall carry into effect the expressed will of a majority of the legal voters, as indicated by their votes for such office, not regarding technicalities, or error in spelling the name of any candidate for such office; and the clerk of said board shall issue a certificate to the person declared to be

elected by said board, which shall be conclusive evidence of the right of said person to hold such office.

SEC. 40. This act shall not be construed so as to impair in any way the right of any person to contest any election in the manner otherwise provided by statute.

OF RESIGNATIONS, VACANCIES, · AND REMOVALS, AND SUPPLYING

VACANCIES.

SEC. 41. Resignations shall be made as follows: First. By the territorial and district officers, members of the legislative assembly, and by all officers elected by the legislature, to the governor. Second. By all county officers, to the county commissioners of their respective counties. Third. By all other officers holding their offices by appointment to the body, board, or officer that appointed them.

VACANCIES.

SEC. 42. Every office shall become vacant on the happening of any of the following events before the expiration of the term of said office: First. The death of the incumbent. Second. His resignation. Third. His removal. Fourth. Ceasing to be a resident of the territory, district, county, or town for which he shall have been elected or appointed, or within which the duties of his office are to be discharged. Fifth. His conviction of any infamous crime or of any offense involving the violation of his official oath. Sixth. His refusal or neglect to take his oath of office, or to give or render his official bond, or deposit such oath or bond within the time prescribed by law. Seventh. The decision of a competent tribunal declaring void his election or appointment.

SEC. 43. The governor shall also declare vacant the office of every officer required by law to execute an official bond, whenever a judgment shall be obtained against such officer for a breach of the conditions of such bond.

SUPPLYING VACANCIES.

SEC. 44. When a vacancy shall occur during a recess of the legislature in any office which the legislature is authorized to fill by election, or which the governor, subject to confirmation of legislative council is authorized to fill; the governor, unless it is otherwise specially provided, may appoint some suitable person

to perform the duties of such office until the next session of the legislature.

SEC. 45. When at any time there shall be in any of the county or precinct offices no officer duly authorized to execute the duties thereof, some suitable person may be appointed by the county commissioners to perform the duties of such offices: provided, that in case there is no board of county commissioners, the governor shall, on notice of such vacancy, create or fill such board.

SEC. 46. Every person so appointed in pursuance of the last two preceding sections shall, before proceeding to execute the duties assigned them, qualify in the same manner as required by law of the officers in whose place they shall be appointed; and they shall continue to exercise and perform the duties of the office to which they shall be so appointed until such vacancy shall be regularly supplied as provided by law.

SEC. 47. The act entitled an act relative to elections, approved January 23d, 1864, be, and the same is hereby repealed.

SEC. 48. This act shall be in force and take effect, from and after its approval by the governor.

APPROVED, December 17th, A.D. 1864.

CHAPTER VI.

AN ACT

TO ESTABLISH A COMMON SCHOOL SYSTEM FOR THE TERRITORY OF IDAHO.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. That the principal of all moneys accruing to this territory, from the sale of any land heretofore given, or which may hereafter be given, by the congress of the United States for school purposes, together with any moneys that, by legacy or otherwise, may be appropriated to the general school fund, shall constitute an irreducible and indivisible fund; the interest accruing from which shall be annually divided among all the school districts in the territory, proportionally to the number of children in each, between the ages of four and twenty-one years, for the support of common schools in said districts, and for no other use or purpose whatever.