their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. See Barnes vs. Supervisors, 51 Miss., 305, Wheelock's case, 82 Pa. State, 297.

§ 127. Those provisions which affect the time and place of the election, and the legal qualifications of the electors are generally of the substance of the election, while those touching the recording and return of the legal votes received, and the mode and manner of conducting the mere details of the election, are directory. (People vs. Shermerhorn, 19 Barb., 540.) The principle is that 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. (Juker vs. Commonwealth, 20 Penn., St. R, 493. Carpenter's Case 2 Pars. 540. Morris vs. Van Laningham, 11 Kas. 269.)

§ 128. The officers of election may be liable to punishment for a violation of the directory provisions of a statute, yet the people are not to suffer on account of the default of their agents. And see upon this general subject, the following authorities: Piatt vs. People, 29 Ill., 72. Hardenburgh vs. Farmers & Merchants Bank, 2 Green, (N. Y.,) 68. Day vs. Kent, 1 Oregon, 123. Taylor vs. Taylor, 20 Minn., 107. People vs. Bates, 11 Mich., 362. McKinney vs. O'Connor, 26 Texas, 5. Jones vs. State, 1 Kansas, 279. Gorham vs. Campbell, 2 Cal., 135. Sprague vs. Norway, 31 Cal., 173. Keller vs. Chapman, 34 Cal., 635. Brightley's Election Cases, 448, 449, 450.

§ 129. This doctrine was again recognized, and enforced in the case of Arnold vs. Lea, (C. L. & H., 601.)-a case which affords an apt illustration of the

rule. In this case it appeared that at one of the voting places, the inspectors who were required by law "to take charge of the ballot box" between the adjournment on the first and the opening of the polls on the second day of the election, delivered it to the sheriff, and directed him to lock it up in some place where it would be safe. The sheriff locked the box up in a trunk, and left the trunk in a storehouse which was also locked. It was clear from the proof that the box was not tampered with, and that no person had been injured by the irregularity, and the House, therefore, refused to reject the vote.

It also appeared that, at one of the precincts, "a large gourd was made use of by the inspectors for the reception of the tickets, and upon the closing of the polls on the evening of the first day, the gourd was carefully stopped and tied up in a handkerchief, and delivered to one of the inspectors for safe keeping; that the same was taken by him, to his home, and locked up until next morning, and then returned and used the second day." There was no evidence of fraud or mismanagement in any other way. This was in clear violation of the statute which required that the ballots be "placed in a box which shall be locked or otherwise well secured." It also appeared that some of the officers of the election were not sworn as the law required. But the committee were of the opinion that "notwithstanding some irregularities in conducting the election in a number of precincts," it was "managed by the officers appointed to hold the same, honestly and fairly and impartially, and according to the spirit and meaning of the law of the State of Tennessee, if

not strictly within the letter of the statute, and that a fair expression of public opinion has been obtained at the several places referred to," and for these reasons the committee reported against excluding the vote of these precincts, and the house adopted the report.

§ 130. Under the laws of some of the States it is necessary to keep separate boxes for the reception of ballots for State officers, and for members of Congress. In cases where by mistake ballots have been dropped into the wrong box, as, for instance, ballots for a member of Congress placed in the box for State officers, some question has been made as to the right of the judges of the election to correct such mistake by removing such ballots from the wrong box to the right one. In the lower house of Congress it has been held that ballots once deposited in the wrong box were lost, and could not be changed to the right one either by the voter or the officers of the election. (Washburn vs. Ripley, Clark and Hall, 679.) But the same question arose again in the House in the more recent case of Newland vs. Graham, (1 Bartlett, 5.) In that case one of the judges of the election testified that he and the other judges finding that a few ballots had been by mistake placed in the wrong box, had them changed. There was no doubt as to the mistake, nor that the judges acted fairly, and in good faith. The committee submitted to the house the question whether these ballots should be counted,-at the same time, however, intimating very clearly their opinion that they should be. In this case the recommendation of the committee was not adopted by the

house or at least was adopted only in part, the seat being declared vacant while the committee recommended the seating of the contestant.

§ 131. The question, therefore, being unsettled by the decisions of the house, let us inquire what is the safe and sound rule upon the subject. A little reflection will satisfy any one that the doctrine of the report in Washburn vs. Ripley, is open to grave objections. In the first place it puts it within the power of a corrupt election officer, to deprive the voter of his ballot, by designedly placing it in the wrong box; and, in the second place, it accomplishes the same result, in case the ballot is placed in the wrong box by accident or mistake. It is a rule, well grounded in justice and reason, and well established by authority and precedent, that the voter shall not be deprived of his rights as an elector, either by the fraud or the mistake of the election officer, if it is possible to prevent it. It does not appear from the report in Washburn vs. Ripley, that any proof was offered to establish the mistake, beyond the simple fact that the ballots were found in the wrong box. It is evident that the proof should go farther than this. It should be shown that the ballots were handed in by legal voters, and deposited in the wrong box by the mistake, accident, or fraud of the officer, and any facts and circumstances tending to establish, or to disprove this proposition should be brought out in evidence.

§ 132. It is safe to say, that a mistake will always be corrected, if it can be corrected, and therefore, the purpose of the party seeking to get the benefit of ballots cast into the wrong box, should be to

prove that they were good and honest ballots and were placed there by mistake, or without his fault. Wherever this is clearly shown, the mistake may be corrected, if not by the officers of the election, at least by the tribunal trying the contest; but, if it is not a clear case of mistake, or if there is any appearance of fraud on the part of the voter, the ballot should be rejected. In other words, the party who, in case of a contest, claims that ballots found in the wrong box should be counted, should be put to the proof that such ballots were fairly and honestly cast by legal voters. It is unjust that the voter should be disfranchised, because the officer receiving his ballot, deposited it in the wrong box. In determining this and similar questions, in cases of contested elections, it should be kept constantly in mind, that the ultimate purpose of the proceeding is to ascertain, and give expression to, the will of the majority, as expressed through the ballot box, and according to law. Rules should be adopted and construed to this end, and to this end only.

§ 133. The view here expressed is fully confirmed by the decision of the Supreme Court of Michigan in People vs. Bates, (11 Mich., 362.) In that case it was held that an elector is not to be deprived of his vote either by the mistake or fraud of an inspector, in depositing it in the wrong box, if the intention of the voter can be ascertained with reasonable certainty. Nor should ballots be rejected because of being put in the wrong box by the honest mistake of the voters themselves. In that case a State and city election were both held at the same time and place, under the charge of the same officers, and