The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-07-21
neither clerk recorded any name recorded

ftus lAdt Nutie beCttOU oUTcqutTcs pAoU
the duplicate poll-books to be sent to the
Mayors office, no such poll.book was ever
sent. nor was any such made.
9th. That while the law, section 81, re-
quires that the ballots shall be counted, dis
tinctly read, and strung on a string, they
were not 80 strung, nor were they In effect,
during large portion Of the canvass, read
or counted. .3i.a ls,Hs ,s.sa ,,..s.I ~.
9th. That while bysection 81 1t is required
that in the returns the number of votes
received by each candidate shall be ex-
pressed in figures, and also at full length in
writing in accordance with a prescribed
form, such number was only expressed
upon these returns In figures. u. r .s5.s-, y.
'7th. That while by section 80 the judges
are required before adjourning to put under
cover and seal one Of the poll.books, and d.
rect it to the clerk, etc., and send the same
by one Of the judges to the clerk, these
books were delivered to the judge open and
unscaled, and by him wrapped In paper
and conveyed by him to the clerk. ~
in reply to these specifications of thfor=
nlality and illegality, it is answered by the.
| complainants, in the genera, that these OBJ
| tections are formal and technical, and should
be overruled rs not affecting the real result
of the election, which is the OBJECT the law
aims to secure by directions which are con-
yenicnt and desirable to be observed, but
not indispensable to the validity of an cleo
ton. That the principle which relieves the
officers of election from compliance with
regulations which are directory cannot and
ought not to he affected or modified In It's
libcralitv, because no examination behind
the ballot is allowed. ~
That while the law requires three judges
in general, it does not contemplate that the
election shall wait an hour for them ana
|eycn if the law did contemplate their pre-
sence together, the incumbents have not
shown, rs they must, that they were preJu-
diced by the fact.
| That. except for the hour in the morning,
(whcn, if all the votes polled were counted
Tor the contestants and thrown out, 1t
would not change the result,) the three
Judges were in presence Of each other IN the
same room, and there is no evidence that
any judicial act was done by them without
consultation: and thus the letter and spirit
of the act was complied with.
That as to the duplication of poil-books,
this was merely directory provision, ana
though the mistake is apparent, tue truth
is equally apparent, and the court must act
upon that, and not upon the mere form OF
its presentation.
| That the requirement that one of the poll
books shall be sent t. he Mayors office is
directory only, and whether compiled with
| OF not, cannot affect the Judgment Of the
court us to the result of the election.
| That the strinGilig of the ballots is not ne
cessary or important, although it may be
| convenient, and the ballots were in reality
counted, the judges could know by glanclnS
at ticket in an election like this, without
reading it. tbatthe track was plumbed by
each party. J.. '..'''" .*si ~.
That the two requirements-one directing
that the number Of votes received by each
candidate shall be expressed at full length
in writing: the other, that the Judges shall
put under cover and seal the poll-book, are
clearly directory and nonesscntial.
| Much the largest portion Of the time Oc-
cupied in this argument has been spent in
the discussion and examination of authori-
ties upon the question, what is to be re-
garded as mandatory in the law and what is
merely directory or adversary, and there
fore non-eSSential.
in Oregon Day Us. Kent, Oregon, 123. }
it has been decided that the return having
been sent as directed, though not accompa-
lncd bv the poll-bouks az required, the
direction was held to be directory merely:
1T Is proper to say of this clsC. however,
that the opinion goes much beyond the de-
cjsionI ..s :.....a... ---.,t.
In California (Whiply us. McCune, 18th
California, 352,) where the State provides
that no irregularity on Improper conduct
on the part of the judges shall vacate an
election, unless it gave the election to the
lperson having the lowest number of votes,
it was decided that the failure to swear the
officers, and that an allegation of the receipt
of fraudulent votes is not sufficient, If not
enough to effect the result.
In Iowa (Dishon Us. Smith, 10 Iowa, 212,) }
it was held that the law requiring the post
ing ofnotice of election was directory and
its disregard immaterial.
In Pennsylvania Ewing Us. Filly, 43
Pcnnsylvania,) it was decided that the fai-
lure to return tally papers, or return pa
pers to prothonatory's office as required by
law, was immaterial. In the same case,
n judge of an election for a part OF the day
may Yitiate the vote of division, If it alter
the result.
In Illinois (Piatt Us. People, Goth Illinois,
Co., it was held that keeping open the polls
after sunset, the hour of closing by law,
was imnlaterial unless the votes received
| afterwards affected the result, and that any
irrcgularity may be overlooked unless it de-
priYcd qualified voter of his vote, admit
ted disqualified voters, or cast uncertainty
on the result.
| In New York (People u.s. Cook, IA Bar.
257 and s, New York, e. it has been decl-
ded that the acts Of de .fucto officers, though
not sworn, are good, that proceeding with
one clerk when two are required, is lmma-
terial, that keeping open. the polls after
sunset was not material unless the votes
cast after that time changed the re-
suit. In that case, in the opinion the judge
i delivering that opinion goes to the extent OF
declaring that regulations for elections are
directory, unless the language declares that
the act shall not be otherwise performed.
l have selected the more important cases
referred to in argument, to show how far
the courts in upholding elections have gone
in deciding to disregard the provisions OF
the law.
severe commentaries have been made by
able judges and jurists upon the extent to
which these courts have gone in disregard.
ing the injunctions of the statute law be.
cause of real or supposed immateriality.
Smith on Stat, G79; Cooley, GIT and 61S
Sedgwick on Con.) t.
Even in the State of New York, however,
where the doctrine and decisions have gone
to the farthest extent, and most OF the cases
cited here followed the New York cases, the
Court of Appeals have placed their limit to
this judicial construction, and declare that
while it is impossible to declare in general
terms what provisions of a statute are man.
datory and what directory, yet If the fail.
tlre to comply aDith the lao produces uncer-
tainty as to the result, the election IS Utttated
Perhaps the declaration of Lord Mansfield
in J. Burr, 447, comes as nearly as possible
to Il general definition of this intricate ques-
tiOn I" Where certain acts are of the essence
of the thing required to be done by the act"
it is imperative.
Applying these rules to the case at bar, /
have already declared that | should have
l ,hnI1 has or.nft1 hnpn