wise, their provisions 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, provided 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; the failure of the 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 voter of his vote, or admit a disqualified voter 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 furnishes a very satisfactory test as to what is essential and what not in election laws.2 And where a party contests

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 Texas, 217; Dishon v. Smith, 10 Iowa, 212; Atty.-Genl. 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 Oregon, 123; Piatt v. People, 29 Ill. 54; Ewing v. Filley, 43 Penn. St. 384. 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.

2 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

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.1 Time and place, however, are of the substance of every election, and a failure to comply with the law in these particulars is not generally to be treated as a mere irregularity.3

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 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 better 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 check-list 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.

1 Lanier v. Gallatas, 13 La. An. 175; People v. Cicotte, 16 Mich. 283. 2 Dickey v. Hurlburt, 5 Cal. 343.

3 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 rejected) 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.

who are entitled to vote,1 and notwithstanding 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 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

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. 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 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 be obviously dangerous to receive and rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their 366.

1 Augustin v. Eggleston, 12 La. An.

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 Wm. Bl. 229; Rex v. Foxcroft, 2 Burr. 1017; Rex v. Withers, referred to in same case.

State v. Giles, 1 Chand. 112; Opinions of Judges, 38 Maine, 597; State v. Smith, 14 Wis. 497; Saunders v. Haynes, 13 Cal. 145. But it has been held that if the ineligibility is notorious, so that the electors must be deemed to have voted with full knowledge of it, the votes for the ineligible candidate must be declared void, and the next highest candidate is chosen. Gulick v. New, 14 Ind. 93; Carson v. McPhetridge, 15 Ind. 327. So 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.

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.

First Parish in Sudbury v. Stearns, 21 Pick. 148.

votes would have upon the result.1 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 purpose for which it was called. 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; 2 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. 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 have 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

1 Newcum v. Kirtley, 13 B. Monr. 515.

Cush. Leg. Assemb. § 184.

See First Parish in Sudbury v. Stearns, 21 Pick. 148.
Ex parte Heath, 3 Hill, 42.

result by resort to oral evidence, public policy is best subserved by allowing the election to stand, 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 accrued 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; 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.2 If a district or State board of canvassers assumes to reject returns transmitted to it on other grounds than those appearing upon its face, or to declare persons elected who are not shown by the returns to have received the requisite plurality, it is usurping functions, and its conduct will be reprehensible, if not even criminal. The action of such boards is to be carefully confined to an examination of the papers before them, and a determination of the

1 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; Atty.-Genl. v. Barstow, 4 Wis. 567; Atty.-Genl. 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.

2 Ex parte Heath, 3 Hill, 42.