(4 Brewster, 531,) it was held that where overseers duly appointed under this statute, were not permitted to serve, but were driven away by threats and intimidation, there is necessarily such a violent presumption of fraud, that in the absence of a perfect showing of legality, fairness, and regularity, the whole poll should be invalidated. "In the absence of any improper conduct on the part of overseers appointed by the Court in conformity with plain statutory requirement," says the Court in that case, "we can hardly conceive of an excuse for not permitting them to serve, or for driving them away, which ought to find favor or apology."

§ 199. In the case of Duffy, supra, the Court laid down the rule that incompetency, inefficiency, and a reckless disregard of essential requirements of the law, on the part of officers conducting an election, to such an extent as that, their acts become unreliable, must of necessity work the same result as actual fraud. No doubt this is so, for it may be regarded as a fundamental principle of the law of elections, that whatever renders the returns or certificates of election officers unreliable, or which, in other words, destroys their value as evidence, is sufficient to set them aside, and to make it necessary to prove the fairness and legality of the election by other evidence. Speaking of this rule, however, the Court, in the case just cited, well says: "While this is the only safe and true doctrine, still, a construction might be given to the statutes relating to elections so strict as to foster and encourage fraud, rather than to crush it and stamp it out."

§ 200. It is often a perplexing question whether

a statutory provision concerning the manner of conducting elections is mandatory or only directory. We have already stated pretty fully the general rules upon this subject and cited numerous authorities. These statutes are numerous and various in this country and it would be an endless task to point them all out and discuss the effect of each. The rule of construction to be gathered from all the authorities was thus stated in Jones vs. The State, (1 Kansas 279,) and approved in Gilleland vs. Schuyler, (9 do 569,) "unless a fair consideration of the statute shows that the legislature intended compliance with the provisions in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory merely." And in the latter case the court said, "Questions affecting the purity of elections are in this country of vital importance. Upon them hangs the experiment of self government. The problem is to secure, first, to the voter a free untrammelled vote: and secondly a correct record and return of the vote. It is mainly with

The end

To hold

reference to these two results that the rules for conducting elections are prescribed by the legislative power. But these rules are only means. is the freedom and purity of the election. these rules all mandatory and essential to a valid election is to subordinate substance to form, the end to the means. Yet on the other hand, to permit a total neglect of all the requirements of the statute, and still sustain the proceedings, is to forego the lessons of experience and invite a disregard of all those provisions which the wisdom of years have found conducive to the purity of the ballot box.

Ignorance, inadvertence, mistake or even intentional wrong on the part of local officials should not be permitted to disfranchise a district. Yet rules, uniformity of procedure, are as essential to procure truth and exactness in elections, as in anything else. Irregularities invite and conceal fraud."

If we keep in view these general principles, and bear in mind that irregularities are generally to be disregarded, unless the statute expressly declares that they shall be fatal to the election, or unless they are such in themselves as to change or render doubtful the result, we shall find no great difficulty in determining each case as it arises under the various statutes of the several States. For an example of a mandatory statute see West vs. Ross, 53 Mo., 350.

§ 201. By an act of Congress approved July 25, 1866 [14 State at large, 243,] it is provided that "the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress in place of such Senator so going out of office."

The power to pass this act is derived from Sec. 4, Art. 1, of the Constitution, which authorizes Congress to make or alter regulations concerning the time and manner of holding elections for Senators. Senators must be chosen by the legislature which shall have been "chosen next preceding the expiration of the term" of the Senator elected to represent the State in Congress, and a person chosen as Senator by any other legislature, can have no right to the seat. (Norwood's Case, Senate Report, No. 10, 42d Congress.)

§ 202. Where a State government is organized and senators and representatives chosen, either in a territory or within the limits of a state, which has been disorganized by reason of participation in rebellion, the subsequent recognition by Congress of the State thus organized, relates back to, and makes valid, the election of such senators and representatives. [Case of Abijah Gilbert, Senator from Florida, 41st Congress, and of Morgan C. Hamilton, Senator from Texas, 42d Congress.]

§ 203. It is not necessary under the act of Congress, of July 28, 1866, to regulate the time and manner of holding elections for senators in Congress, that the election by the legislature should actually take place on the "second Tuesday after its organization." It is enough if on that day the legislature takes action on the subject, and actually votes, though unsuccessfully, for a person to fill the office of senator. [Case of Abijah Gilbert, supra.] The legislature must, however, continue to meet in joint convention until a choice is reached. The principal purpose of the act of Congress was, to deprive one house of the legislature of the power to prevent an election by refusing to go into a joint convention for that purpose.

CHAPTER IV.

OF THE PRIMA FACIE RIGHT TO AN OFFICE.

§ 204. Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, it is often necessary to determine which of the claimants shall be permitted to qualify and to exercise the functions of the office, pending such investigation. If the office were to remain vacant pending the contest it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of the services of a public officer. Besides, if the mere institution of a contest was to be deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil disposed person, to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term. And this might be done, by a contest having little or no merit on his side, for it would be impossible to discover, in advance of an investigation, the absence of merit. And again, if the party holding the ordinary credentials to an office, could be kept out of the office by the mere institution of a contest, the organization