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(Irregularities will not vitiate the poll.)

That a mere irregularity on the part of the election officers, or their omission to observe some merely directory provision of the law, will not vitiate the poll, is a point sustained by the whole current of authorities; but there has existed a great conflict of opinion, as to what is an irregularity and what is matter of substance. Matters of substance, in the holding of an election, it would seem, may be resolved into such as affect the time and place of election, the due qualification of the officers by whom it is holden, and those affecting the legal qualifications of the electors; but the conduct of the election officers in the performance of the duties enjoined by law, and their observance of the provisions of the statutes in regard to the recording and return of the legal votes received by them, would seem to fall within the description of directory provisions, and any departure on their part from a strict observance of such portions of the election law, to be regarded as irregularities which do not vitiate. See People v. Schemerhorn, 19 Barb. 540.

The general principle involved in this discussion, was well considered by Chief Justice Lowrie, in Commonwealth v. Meeser, 44 Penn. St. R. 343, where the learned judge says, "no doubt, there are very many cases in which a strict adherence to the letter of the law would be destructive of justice; and it is quite impossible for the law to define with precision all the customary rights of a people, or to express exactly the duties arising from the ever-changing forms of social transactions; there is a very large field of social relations, wherein the law, whether statutory or customary, must ever remain somewhat indefinite, in order to be adapted to society. But is it so with our election law? We think not; all our electoral rights depend on written law, and it only can define them; it is true, that written law depends itself on ulterior principles of natural law; but these principles are subject to very great diversities of application, and lack entirely that definiteness which is an essential quality of law as a rule of common or social conduct. Law is intended to be a definition of those principles, in such form as to fit them for a ready and ordinary use, and to avoid the disputes that necessarily grow out of more general principles; and nowhere is clear and precise definition more needed than in the laws that relate to the organization of society, and to the maintenance of its, organic forms. Form is the sole purpose of them, and we must view them formally, and follow them strictly, else the whole society is very apt to be disturbed; no latitude or looseness of administration of the law is tolerable, when it

(Irregularities will not vitiate the poll.)

endangers the peace and order of society; it ought to be so steady, as not to be at all shaken by partisan excitements." And see Lancaster Election, 4 Votes of Assembly 127.

The forms, however, which must be observed, in order to render the election valid, are those which affect the merits. Thus, it is said, in Juker v. Commonwealth, 20 Penn. St. R. 493, to be the general rule of elections, that mere irregularities, which do not tend to affect results, are not to defeat the will of the majority; the will of the majority is to be respected, even when irregularly expressed. The same idea is expressed in Carpenter's Case, 2 Pars. 540, where the court say, that although the election officers may be liable to punishment for a violation of the directory provisions of the statute, yet, "the people should not be punished for the defaults of their agents." In Thompson v. Ewing, 1 Brewst. 107, it was said by Judge Thompson, that while on the one hand, the whole conduct of election officers may (though actual fraud be not apparent) amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and the results of their action unreliable for any purpose; on the other, the mere neglect to perform the directory requirements of the election laws, or the performance of their duties in a mistaken manner (where there is no reason to believe that the officers acted with bad faith, and no harm has accrued from the negligence or mistake), ought not to be allowed to defeat the expression of the will of the people of an entire district, against whose votes no objection can be made. And see Mann v. Cassidy, 1 Brewst. 60; Weaver v. Given, Ibid. 157. In Illinois, the rule is thus laid down by Breese, J.: "the rules prescribed by law for conducting an election, are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain, with certainty, the result; such rules are directory merely, not jurisdictional or imperative; if an irregularity, of which complaint is made, be shown to have deprived no legal voter of his right, nor admitted a disqualified person to vote, if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, it may well be overlooked in a case of this kind, where the only question is, which vote was the greatest?" Piatt v. People, 29 Ill. 72. The same general principle has been established in New Jersey; Hardenburgh v. Farmers and Mechanics' Bank, 2 Green Ch. 68: in Oregon; Day v. Kent, 1 Oregon

(Irregularities will not vitiate the poll.)

123 in Minnesota; Taylor v. Taylor, 10 Minn. 107: in Iowa; Dishon v. Smith, 10 Iowa 212: in Michigan; People v. Bates, 11 Mich. 362: in Texas; McKinney v. O'Connor, 26 Texas 5: in Kansas; Jones c. State, 1 Kansas 279: and in California; Gorham v. Campbell, 2 Cal. 135; Sprague v. Norway, 31 Cal. 173; Keller v. Chapman, 34 Cal. 635. Where, however, the election officers, though acting in good faith, adopted an erroneous rule as to the qualification of voters, which being known as the decision of the board, prevented other voters, similarly situated, from tendering their votes, it was held, that this was an undue election. Scranton Borough Election, 1 Luzerne Leg. Obs. 12, Conyngham, J. (post 455). But see Gibbons v. Sheppard, 2 Brewst. 74.

It is conceded, on all hands, that time and place are of the substance of every election. Dickey v. Hurlburt, 5 Cal. 343. (See Jacobs v. Murray, 15 Cal. 221.) And it would seem, therefore, that due notice of the time and place of holding an election ought to be essential to its validity. Bang v. Lauck, 5 Cold. 588. On the 17th October 1700, the general assembly of Pennsylvania declared void the election of representatives from Newcastle county, for want of notice to the electors; 1 Votes of Assembly 124: and on the 31st March 1789, the supreme executive council of Pennsylvania set aside the election of justices of Finley township, on the ground that notice of the time of holding the same was not given, according to law; 16 Colonial Records 44. (And see Northampton Election, 4 Votes of Assembly 658.) But this reasonable doctrine has not been sustained by the only judicial decisions to be found upon the subject. In Indiana, it was decided, that an election for county auditor was not void by reason of an omission to give public notice that it would take place; State v. Jones, 19 Ind. 356: and in New York, a vacancy in the office of judge of the supreme court having occurred on the 23d October 1855, the court of appeals held, that it was competent for the electors of the district to elect a person to fill the vacancy, though no notice had been given by the secretary of state, pursuant to the statute. People v. Cowles, 13 N. Y. 350. And see People v. Brenham, 3 Cal. 477; People v. Hartwell, 12 Mich. 508.

In regard to the place of holding an election, it was determined by the supreme court of California, that if the election officers open the polls and hold the election at a place not authorized by the board of supervisors, and at a distance from the place appointed by such board, without any excuse therefor, the poll must be rejected, as invalid.

(Irregularities will not vitiate the poll.)

Knowles . Yeates, 31 Cal. 82. And the same point was determined in Pennsylvania, in Chadwick v. Melvin, ante 251. So, it was held in Tennessee, that a failure to open and hold an election in each one of the civil districts of a county, will vitiate the election. Marshall v. Kerns, 2 Swan 68. "Where the law has prescribed the time and place of election, and designated the officers who are to conduct it, a majority may not set up other officers, and hold a separate election; for majorities as well as minorities are bound by law." Juker v. Commonwealth, 20 Penn. St. R. 493; and see Commonwealth v. County Commissioners, 5 Rawle 75. The rule is the same in New Jersey; Miller v. English, 1 Zabr. 317.

With respect to time, it has been determined that, where the law required the polls to be kept open until ten o'clock, and they were closed at eight, the election must be set aside. Penn District Election, 2 Pars. 526. So also, if they be opened at a much later hour than the time prescribed by law. Chadwick o. Melvin, ante 251. So, it was ruled, in Ohio, that if the polls were closed, for any purpose, between the hours fixed by law for holding the election, it would render it illegal and void. State v. Ritt, 16 Am. L. Reg. 88. But this was overruled in Fry v. Booth, where it was held, that the statutory provision that the polls should remain open during the entire day, between the hours specified, was to be regarded as directory merely; and that the closing of them during the dinner-hour, did not vitiate the poll. 19 Ohio St. R. 25. Where the polls were kept open, after the proper hour, the election was set aside, on the ground that enough votes had been cast after the legal hour for closing the polls, to have changed the result. Locust Ward Election, 4 Penn. L. J. 341. In Illinois, however, under similar circumstances, it was held, that it must be shown affirmatively, that votes were received after the proper hour which did change the result. Piatt v. People, 29 Ill. 54. In People v. Cook, it was decided that the hour of closing the polls, in New York, was directory, not imperative, and that a slight deviation therefrom would not vitiate the poll. (And see Rex v. Pole, 7 Mod. 194; Case of Adams, Cush. Elect. Cas. 391.) An election will not be set aside, because the polls were closed at the hour specified by the statute, though a number of qualified voters were thereby prevented from depositing their ballots. Clark's Case, 2 Pars. 525.

An election must also be conducted by the proper officers; an election held by mere intruders, without title or color of title, may be disre

(Irregularities will not vitiate the poll.)

garded. Thompson v. Ewing, 1 Brewst. 99. But, as was ruled in People v. Cook, it is enough that the persons who conducted the election were officers de facto, it need not appear that they were such de jure. Thompson v. Ewing, 1 Brewst. 111-12; People v. Cook, 14 Barb. 259; McKinney v. O'Connor, 26 Texas 5; Sprague v. Norway, 31 Cal. 173; McCraw v. Harralson, 4 Cold. 34. Where the state election law prohibits an election officer from being a candidate at the same election, though the fact that a candidate acted as an election officer will avoid the election as to him, it will not affect the other candidates. Boileau's Case, 2 Pars. 503 (ante 268); Wilcox v. Magruder, 7 West. L. J. 507. The absence of the judge during a portion of the day will not invalidate the return. Thompson v. Ewing, 1 Brewst. 99. And a statutory provision that the board of inspectors shall consist of three persons, is directory only; an election held by two only is valid. State v. Stumpf, 21 Wis. 579.

The mere misconduct of an election officer, which does not affect the result, will not vitiate the poll; thus, where one of the clerks, from intoxication, was unable to continue his labors, and another was called in to act in his place, who was not sworn, and continued to officiate until the regular clerk was able to resume his duties, the court refused to throw out the poll. Boileau's Case, 2 Pars. 503 (ante 268); Thompson v. Ewing, 1 Brewst. 108; Case of Chester, Cush. Elect. Cas. 664. Nor is it sufficient to invalidate the election of another officer, that the ignorance of the election officers compelled them to call in one who was a candidate at that election, to show them how to make out the returns. Thompson r. Ewing, 1 Brewst. 110. So, if the election officers be illiterate, and for that reason a person who is not a member of the election board, nor a clerk, take the ballots from the box and read them to the tellers, at the invitation of the board, this is not such an irregularity as will vitiate the poll. Sprague v. Norway, 31 Cal. 173. And the mere position of the ballot-box, though irregular, will not annul the election. Augustin v. Eggleston, 12 La. An. 366. See the cases decided in congress in 1 Bright. Fed. Dig. 276.

Perhaps, the most important question which has arisen under this head of the election law is, whether the omission of the election officers to require from unregistered voters, the preliminary proof required by law, is a mere irregularity, or a matter of substance which renders such votes absolutely illegal. It was held in Kneass's Case, 1 Pars. 553, that such votes were primâ facie illegal, but might be counted, on proof that the

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