fact, either changed or rendered doubtful the result was recognized as early as 1796, by the House of Representatives of the United States in Lyon vs. Smith (Cl. & H., 101.) In that case it appeared that no notice had been given of the time and place of holding the election in two towns of the district, but as it did not appear that the votes of all the freemen of those towns could have changed the result if duly given, the House refused to set aside the election.

§ 120. In the case of McKune vs. Weller, (11 Cal., 49,) the question whether a proclamation, giving notice of the holding of a special election, held to fill a vacancy caused by the death of the incumbent, was necessary to the validity of such election, is discussed at length. The authorities upon the subject are there reviewed with care, and the conclusion is reached that there is an important distinction to be observed between general and special elections. The time, place and manner of holding the former being fixed by law, the electors may, and indeed must, take notice of them, and as to such electors the statutory requirement of public notice by proclamation or otherwise, may be regarded as directory only. But it was held that the statute requiring the Governor to issue his proclamation of election to fill vacancies, which occur not in the ordinary way, by the expiration of the term, but by death or resignation, before the term expires, is mandatory, and an essential prerequisite to all such elections.

§ 121. In the same case it was further laid down that an election cannot take place without statutory regulation. All the efficacy given to the act of casting a ballot is derived from the law making power and through legislative enactment, and the legislature must provide for and regulate the conduct of an election, or there can be none.

9

The case, supra, was followed in People vs. Martin (12 Cal. 409.) And see Sawyer vs Hayden,1 Nev. 75, State vs. Collins, 2 do, 351, where it is held that there is no inherent right in the people to hold an election.

§ 122. A statute of the State of New York provided that the citizens of the several towns qualified to vote are required annually to assemble and hold town meetings in their respective towns, at such place in each town, as the electors thereof in their town meeting shall from time to time appoint; and if at any annual town meeting no place is fixed by the electors for the next annual town meeting, such town meeting shall be held at the place of the last annual town meeting. The electors of the town of Northfield at their annual town meeting in 1847, omitted to fix the place for the annual town meeting in 1848, and by reason of this omission the law fixed the place at the Bull's Head tavern, where the previous annual meeting was held. On the proper day, in 1848, the electors assembled at that place and organized, when a motion was made, in the presence of the electors assembled, "that the annual town meeting for the year 1848 be held at the place aforesaid, until twelve o'clock at noon of that day and then be adjourned to the house of W. C. Martin, within the town where it shall be held, for the remainder of the day." This motion was carried, and the election was accordingly held at the one place until twelve o'clock, and then adjourned to the other, and there held the remainder of the day. The Court of Appeals of New York held, not without some hesitancy, that this action was legal. (The People vs. Martin, 5. N. Y., 1 Selden, 22.) Paige J., in delivering the opinion in this case, says: "I confess that I have had some difficulty in coming to this conclusion, and I think that the power of adjourning a town meeting to another time and place, may, un

ment.

der peculiar circumstances, be oppressively exercised, and lead to a defeat of the popular will. This power ought not to be exercised except in a case of extreme necessity." Under the same statute above referred to, the Supreme Court of N. Y. held that the electors on the town meeting being opened, had a right to adjourn the meeting to the next day, to be held at another place, and that the electors were the exclusive judges of the necessity of the adjourn(Goodell vs. Baker, 8 Cow., 286.) In both these cases, however, the question was upon the construction of a statute, and it is very clear that neither the time nor place of holding an election can be changed after being once legally fixed, unless such change is authorized by statute, and it may also be observed that statutes which authorize an adjournment to another place after the election has been opened, are very objectionable and inexpedient. Some of the electors may not attend in the early part of the day, and may, therefore, have no notice of the change. Statutes ought to be, and generally are provided, to allow a change of the place of opening the polls, or holding an election, in case of necessity, such as might arise from the destruction of the building designated for that purpose, but aside from cases of this kind, adjournments, or changes, are not as a general rule permitted.

§ 123. In a contested election case, very little attention should, ordinarily, be paid to mere irregularities in the proceedings of the election officers, which do not affect the real merits of the case. Thus it was held by the Court of Appeals of New York, in People vs. Cook, (8, N. Y., 67,) that where the

evidence goes only to show an irregularity without fraudulent intent, and by which nobody is injured, the Court is not bound even to submit it to the jury as an open question. The question, in that case, was, whether ballots cast for Benjamin C. Welch jr. and Benjamin Welch, should be counted for Benjamin Welch jr. Evidence was admitted to show the voters' intention, and it was such as to leave no room for doubt, that all these ballots were intended for the latter, and the court, below, instructed the jury to find accordingly. This rule was affirmed in the Appellate Court.

§ 124. And in Borleau's Case, tried before the Court of Common Pleas of Philadelphia, it appeared that in the afternoon of the day of election, one of the clerks of the election became so much intoxicated as to be unfit for his duties, and, at the request of the inspectors, one Samuel C. Coxe, acted as clerk for the balance of the day, and until about three o'clock in the morning of the succeeding day, when the clerk, having recovered from his debauch, appeared and signed the returns. Mr. Coxe was not

sworn and was a candidate for assessor at this election. Held, that these facts were not such as should induce the court to set the election aside, and the ground of the decision was, that the evidence did not disclose any bad faith on the part of the officers, nor any fraud. (2 Parsons, 503; Brightley's Election Cases, 268.)

§ 125. In the same case, it further appeared, that one John Haines, a candidate for Judge, was occasionally in the room where the election was held, during its progress, and after the polls closed; that he

opened a few of the tickets, but being admonished, desisted. Several witnesses testified to his handling tickets and to his intermeddling, and it is clear that his conduct was improper in the extreme. But the Court say that "it has not been pretended that this election is in any particular tainted with actual fraud; no evidence has been adduced either showing legal votes to have been rejected, or illegal votes received; the election seems to have been honestly conducted," and for these reasons the court declined to set it aside.

§ 126. While it is well settled, that mere irregularity on the part of election officers, or their omission to observe some merely directory provisions of the law, will not vitiate the poll, there has been some confusion and conflict as to what we are to understand by irregularities, and as to what provisions of statute are to be regarded as directory and what mandatory. A few remarks upon this subject will be proper in this connection. The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits, or affects the result of the election, or not. Such a statute is imperative, and all considerations touching its policy or impolicy, must be addressed to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done, within a particular time, or in a particular manner, and does not declare that