The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-07-11
THE CONTESTED ELECTION.
FINAL ARGUMENT OF COUNSEL.
SPEECHES OF aEssRs. MAURY AND
JOHNSON. ....... ......

contested city election, was resumed.
MIR. Maury congratulated the court that
this discussion was being brought to close,
and had been made so barren and bare as to
admit of little argument. There was, he
believed, no challenge of the return of the
second precinct Of Marshall Ward. AS to
the returns from the third precinct of JEFF
ferson Ward, the counsel on the other side
had stated their objections to them. Those
objections, he thought, were technical
and unsubstantiai. He called the at
tention of the court to the 9th section
of the election law defining the form of
the pol-books to be kept by the judges OF
election, and proceeded to read the
blank forms for conducting elections. The
returns from the Jefferson Ward third pre-
cinct, it was contended, were at variance
with these forms. He declared that these
| returns were in entire and strict conformity
with the law. He eontcnded that the re-
turn designed by the law was not the list of
voters but the certificates appended by the
judges, which might as we'll be placed on any
other piece Of paper as well as on the poll
book. These certificates gave the names of
the candidates and the votes they received,
and these were the returns, and constituted
the official act by which the poll-books were
closed. 1t was true that the number of the
votes in this third precinct return were
uOG NIlGbeU Oub icLSIu, DuG
were in figures. With this exception, it
was in literal conformity with the law.
Judge Crump Does not that return you
hold in your hand show double the number
of votes that were cast at that poll
Mr.. Maury: The return is document
entirely Independent of the list Of voters.
1t Is complete in itself, and it is not neces-
sary to go to the list OF voters.
Mr.. Neeson: Do you claim two certifi-
Gates or oneI
Mr.. Maury: If there are two, and both
our bow. Who wouldn't3 And If both
arc valid, either one would be. IL the
judges had certified score Of times to their
having performed judicial act, it would
only strengthen, not weaken the act. He
took it that the opposing counsel would
hardly contend that these two returns were
certificates of separate judicial act.
Mr.. Neeson: AS the returns have no date,
and refer to no election, how are We to
know?
Mr.. Maury You cannot separate either
of them from the officer making the returns.
1t was said that the returns falsitied them
selves, and he went on to combat that state
nlent. Was it ever heard that when returns
were made and put in the book that be-
cause there was some irregularity before it
Though he didn't admit that) that those ir--
regularities should invalidate the final and
solemn act Of the Judges of election. BE re-
fcrred to Illinois Reports 20, page 423, case
of Hilliard, where the canvasScrs or COM
misSoners of election because the jurats
were not signed by an officer having au-
thority to administer an oath, and where
the court had decided that the objection was
of no force, for such act formed no part of
the certificate on which the board Of COM
70 Tho indians If hold
were acting colore ofcii, and should be
supposed to have known their duty and
complied with its requirements. The re-
turns, the court held, were sufficient in
themselves. Mr.. Maury cOntended that
omission in matters merely ceremonial and
not essential could not invalidate the re-
turns.
But suppose the returns were not suffi-
cient of themselves. The opposing counsel
said here were two books which ought to
be duplicates, and one of which should be
In the Mayors office. 1t was principle OF
was not mandatory. Some things were
merely advisory or directory, and Lord
Mansfield was quoted TO confirm this. Were
it otherwise there would be an absolute fall
ure of Government. Sedgewick on Consti-
tutional and Statutory Law, PIP. 80, 81,
and Smith on Statutory Law, 1872, and
Cooley on Constitutional Limitations, PIP.
617, 6lS, were read to shew that iberality
should be exercised in the construction OF
the law in cases where the result was not
affected, and where no voter had been de-
prived of his right to vote, nor illegal
voters permitted to vote. Did any one con-
tend here that having two books at the
third precinct of Jefferson Ward not dupl-
Gated prevented any legal voter from eXer-
cising his right? Is it contended that the
result is affected by the neglect of this for
mality? The return itself was sufficient
evidence in this trial of right to office.
There was no necessity of having the poll
lists at all. He held that a list of numbers
and names would be cOuntervailed by the
certificate of the judges of the returns.
The Court, according to these canons OF
liberality, should, except in matters of SUBJ
stance, hold any departures from form to be
departures from advisory or directory and
not mandatory law. The law never meant
that because duplicate of the poll-book
was not kept for his Honor the Mayor that
the election should be declared invalid and
remanded to the people. 1twas the Courts
duty to lind out if the returns showed SUBJ
stantial conformity to the law. 1t was too
Late in the day for the Court to be told that
departures from the statute i'll cases not
mandatory were to render the whole cleo
the ballots not having been strung. Sup
pose that is so, would the Court declare the
election nullty on that account? The
matter Of time in opening poll was Illus
trated. The watches of the judges might
be wrong, and the votes cast before or after
sunset would not be illegal OH that account.
Mr.. johnson: Do you mean to say that
the omission of anything directory is not
illegal?
Mr.. Maury Yes otherwise it would be
sacrificing substance to form. He again
read 10Th Illinois, page 424 (IIilliarD, to
show that mere formal defects might be af-
forwards remedied, and it was competent
for this court to permit the officers OF the
election to come in after any lapse Of time
and amend their returns. Such Il course
would be, and had been decidedto be, in
ftlrtherance of justice. Eighth New York
Reports, pages SO and9 (People Us. Cooke,
was read to the same end. Which was
most entitled to weight in this matter-the
oaths of the judges and clerks of election,
and of the clerk of this court, or the bit Of
sealin g-Wax which failed to be placed Oh
the returns. The speaker proceeded to
show the consequences of disregirdinS
these returns on the ground of informality
which was not substantial. The whole re-
suit Of the election would be changed. Be-
cause there were two books kept at that
third precinct. because the returns were
not sealed, and for other SIMILAR and merely
ceremonial reasons, the whole election
would be set aside, and the people vexed by
q new election.
Mr.. Crump: What do you mean by 8
new election?
Mr.. Maury: II your Honor decides that
there has been no election, then the proper
authorities would order al election.
Mr. GRIMM. That is easy to assert. but