and finally by the New York Court of Appeals,1 which also held that the receipt of the ballots of voters whose names were on the registry was right, although the board by which the names were registered was not regularly organized. It has also been decided in New York that the fact that illegal votes are polled does not vitiate the election unless such votes change the result.2

There are cases, however, in which certain irregularities shown to have occurred in the conduct of the election, were held to invalidate it. Thus in one of the wards of Philadelphia a disorder having arisen at a ward election, the constable of the ward and the persons. alleging themselves to have been elected judges, adjourned the election from the usual place designated to a neighboring place, where the voting was continued, and one set of candidates received the highest number of votes, and were returned by the constable as elected. The electors who remained at the usual place of election, appointed judges and held an election, without calling upon those designated by the act of assembly as the persons to hold the election in the absence of the regular judges; and the candidates here elected were so returned to the commissioners. It was held by the Supreme Court that both elections were illegal and void.3 In another case in which the election was to fill a supposed vacancy, it was held that the court empowered by law to try

1. 62 N. Y. Court of Appeals, page 193.

2. People v. Thacher, 55 N. Y., 525.

3. Commonwealth ex. rel. Leslie v. Commissioners, 5 Rawle (Pa.), 45.

the question and adjudge the vacancy, not having done so before the election was held, the election was irregular and void. This decision went to the right of holding the election, rather than to any irregularity in conducting it.1

Under what circumstances a failure to comply with the directions of the law in the conduct of an election, will justify the rejection of the poll, the contested election cases in 1867, in Philadelphia, serve to illustrate. The gist of the decisions in those cases is, that, while unintentional omissions or a failure through inadvertence to observe all the directions.of a statute, will not defeat an election, any such omission or failure wilfully done, or done in violation of any right or in a way which makes fraud possible, will be cause for setting aside the election.2

The authorities are numerous, and in accord, upon the

1. Commonwealth ex. rel. Ross v. Baxter, 35 Penna. State Reports (II Casey), 263. By the Court: "Even if every voter in the township had voted for another, it would have had no effect: Majorities go for nothing at an irregular election; we cannot regard them even as majorities, for it is the right of orderly citizens to stay away from such elections."

2. Contested Election Cases of 1867, 1 Brewster's Pa. Reports, 162. The syllabus of the case on the points in question reads: "An election which is not conducted according to law, either as to substance or form, is an undue election. More clearly an election is undue in the management of which the positive and material requirements of the law are wilfully and knowingly disregarded and disobeyed. Honest mistake, or mere irregularities will not suffice to set aside an election, but this principle does not give a general license to election officers to set the law at defiance." Sealso the text of the decision (page 174) holding that the continuous omise sion of what the law enjoins, and commission of what it forbids, is strong proof of a fraudulent purpose.

point that, if the irregularity is such that the errors cannot be accurately corrected, or such as to cast the result into doubt and confusion, the poll must be vacated.1

In the earlier decisions of contested elections in congress the House of Representatives adopted the doctrine that disqualification of election officers, their failure to take the oath required by the statute, holding the election with less than the prescribed number, and similar irregularities vitiated the election. In a series of cases this rule was followed.2 Subsequently, however, in view of the numerous and concurrent adjudications by the courts, the House of Representatives abandoned its position, and recognized and accepted the doctrine that, in the absence of fraud, the acts of officers de facto of an election are valid as to third parties and the public.3

In the contest of Barnes v. Adams, the report of the committee, saying that "the judicial decisions are all to the effect that the acts of officers de facto, so far as they affect third parties or the public, in the absence of fraud, are as valid as those of an officer de jure," concluded that the question is a settled one in the courts of the country and ought to be adhered to, "not only because of the very great authority by which it is supported, but for the

1. Littlefield v. Green, Brightley, 493; Mann v. Cassidy, 1 Brewster (Pa.), 60; Weaver v. Green, Ibid, 140; Battery v. Megany, Ibid, 162; Gibbons v. Shepherd, 2 Brewster, 1; Harper v. Greenbank, 1 Ibid., 189; Platt v. People, 29 Ill., 72.

2. Jackson v. Wayne, Cl. & H., 47; McFarland v. Culpepper, Id., 221; Easton v. Scott, Id., 272; Howard v. Cooper, 1 Bartlett, 375; Delano v. Morgan, 2 Bartlett, 168.

3. McCrary on Elections, page 56, ? 76, quoting several cases.

further reason, as stated in the outset, that we believe. the rule to be most wise and salutary." The report was unanimously adopted by the House of Representatives.1

In determining, however, the effect of the non-observance by the election officers of the provisions of the statute, it is important that regard is always had to the distinction between such provisions as are merely directory, and those that are mandatory. To determine this the language of the act must be consulted. When it is expressly declared that certain acts are essential to the validity of the election, and that, if omitted, the proceeding shall be void, there is no alternative from setting the election aside.2 But if the directions have reference to mere detail, the omission of some of which cannot affect the result, they are directory and a different rule prevails. 3 Where a depository for the ballots different from that described by the law has been used, as in the case of Arnold v. Lea, Cl. & H., 601, where it appeared that a gourd was used instead of a ballot box, but was carefully stopped up and kept; where, as in the same case, a ballot box, after the closing of the polls, was put by the sheriff in a trunk in a store, but there was no proof that

1. 2 Bartlett, 760; Cong. Globe, July, 1870, pages 5179-5193.

2. McCrary on Elections, 126, page 93.

3. See People v. Schermerhorn, 19 Barbour, N. Y., 540; People v. Bates, 11 Mich., 362. In this latter case a state and city election were held at the same time, and separate boxes provided for the state and city ballots. On counting the ballots, it was found that some were put by the inspectors in the wrong box. The court held that in such a case an elector cannot be deprived of his vote, either by the mistake or fraud of an inspector, if the intention of the voter can be ascertained with reasonable certainty.

it had been tampered with; where, as in the case of the People v. Bates, ballots are put in the wrong box-in all these cases, it was held that, there having been no design or fraud, such mistakes or accidents will be corrected so as to give effect to the will of the majority. To that end rules not made imperative by the statute should be construed and enforced.

Counting Votes..

The mode of canvassing votes depends upon the statute of the state, and the decisions in contested cases arising from the disputed action of boards of canvassers have been mainly constructive of the statutes. There are, however, certain general rules governing the procedure in election contests and the disposition of imperfect and disputed ballots, which, in the absence of positive statutory regulation, prevail.

The statement of a voter who claims to have cast a ballot which expresses no meaning of itself cannot be received to give it a meaning, nor can evidence be received aliunde to contradict the ballot, but if it be merely ambiguous, any evidence of surrounding circumstances, which may tend to explain the ambiguity and get at the voter's intent, is admissible.1

In Cooley on Constitutional Limitations, page 611, the rule on the admissibility of extrinsic evidence is said to

1. Report in case of McKenzie v. Braxton, 42d Congress; Chapman v. Ferguson, 1 Bartlett, 267.