The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-07-13

the purity Of elections. Already Ill one
branch of this subject your Honor has de-
termincd that as far rs the vote of the citi-
zen is concerned that vote can never be
assailed that whether rightly or wrongly
deposited, the fact that the judges received
the ballot settles the matter, ana thero Gun
be no investigation of it. .
THE VIRGINIA ELECTION LAW OF NECESSITY
MANDATORY. " E..' .
If the opposition has been able to find
that in any of the thirty-siX States oil the
Union the election laws are like those OF
Virginia they have failed to bring 1t to light.
Virginia, OF all the other States, Is the only
one in which it can never be discovered
whether voter who has succeeded III de-
posting his ballot has voted frauduently or
not. What, then, is left to secure safety OF
election? In other States errors on poll
books may be corrected by application to
the voter himself, who may be compelled
to tell how he voted, so that the books may
be corrected. In Virginia that cannot be
done. Here the judges of election are SUI
prcme, and the only method left to asccr-
tain the vote is the return of the officers
| made on proper poll.books. Thus, in Vir.
ginia the fOrmalties of election become OF
the uery essence of the election, and COM
pliance with them is the only mode by
which we are to ascertain the vote. In
other States the election laws in some re-
spects may be directory, but here the
very nature Of things require that they
should be mandatory. There is no safety
outside of that. The first rule Of construc-
ton. as your Honor knows, is the simple
letter of the statute, and when that is
known there should be no departure from
it. In Smith on Statutes, chapter 16, Sec
ton 716, page S3l, the author says great
caution should be exercised less judges
should usurp Legislative function. Nothing
can he more dangerous than the decisions
that make distinctions between the intent
and tile letter Of the laws In the case of
Stone ct. al. Us. New York, the writer goes
on to say that the ablest judges have tcsti-
fed against this dangerous practice. The
court, MIR. Crump hoped, would remember
that the Legislature had before them in
making this election law the experience and
laws of other States and decisions of courts,
and was itself master Of the situation, and
could have made any law it pleased. Quo
ting again from Smith on Statutes, he
showed that courts were bound to take acts
us they were passed, and could not supply
casus onissus if it existed. The court
could not go into equity, and cannot, With
out danger, 90 outside of the plain words
of the act. in case decided where the
ulutlCI W It's " lllll tllC SOHISlIPlu-
ted by the Legislature, but not within the
words of the act, the judges refused to
stretch the words of the law SO as to make
| it cover the case. ....
TuB DIRECTORY" ARGUMENT oP TIE
OPPOSITION.
The counsel on the other side lay great
stress on the directory or advisory character
Of the election law. Sedgwick on Statutory
and Constitutional Law, page 3l7, was read,
in which decisions were quoted IN opposl-
tion TO modifying or escaping statutory laws
| by pleading that they arc merely directory.
The intention Of the Legislature, says the
| author, should control absolutely the judi
ciary, and when the Judiciary has ascer-
tanned the intention of the Legislature it
has only to execute it. The question, Mr..
Crump thought, whether law was
directory or mandatory was governed
and decided by the legislative intent.
There was not 4 single case brought by the
other side where it was in proof in court
| that no poll had been held--no register of
the votes kept. The one most like it was
| the case from Oregon. Well, there was a
divided court. In the second place, Ore
gon has statute expressly declaring that
| technical objections shall not vitiate the
election. So it is in California, from which
State the opposition has also drawn some
| authorities. In Oregon, too, the law pro-
vides that it may be ascertained for whom
the majority of the legal votes were cast
but here in Virginia we are debarred by law
from doing this under your Honor's deci-
| sion. In Oregon, also, it is only required
| that certificates be sent to the county
auditor and judges, not poll-books, as
| the law in Virginia requires. In the Oregon
case cited the poll-book was only to be sent
| to the Judge Of election, and that not being
proved not to have been done, was taken
for granted to have been done by presump-
ton of law. On this all the argument in
the case was based. But even in that case
the dissenting judge thought that some
thing must be considered rs imperative.
The other judges held that even if no poll
book had been kept at all the election was
not vitiatcd, because the poll could be gone
into and the voter made to say how he
voted. This we are debarred from in Vr-
gnia.
MANDATORY CHARACTER OF THE ELECTION
LAWS.
There had not been ono single act taken
i'm accordance with the election law by the
officers of the third precinct poll from the
time they commenced until they ended.
He read from Il PENNSYLVANIA decision
wherein it was decided that the election
laws were mandatory, and must be fol.
lowed out and if carrying them out votes
that should be counted in the result were
cast out, it was the misfortune of the par.
ties, but the law must he carried out. The
case of Whipley vs. McCune, in 10Th Cali.
fornia Reports, where WhipIey was sueine
on behalf of Charles BottsA formerly OF
Richmond, to obtain 4 judgesRip, was again
quoted from to support this view. The OBJ
lection in the case was that the clerks oil
election had kept no legal tally-papcr. The
case bore no likeness to the case now in
that where q precinct is thrown out fol-
irregularity the whole election is not set
aside.
In 43d Pennsylvania Reports, p. 3SS, Ew-
ing Us. Filly, in the Supreme Court, it was
decided to the same end.
Mr.. Crump called the attention Of the
Court to the fact that in all these cases the
returns and the polls were not considered
necessary to each other; but here i'll Vir-
gina the polls and the returns were inscp-
arabic. In EiDing Us. fflly the Court de-
clared that the absence Of 4 Judge from the
polls was so grave matter that it might
possibly vitiate the election, but did not de-
eide on that question, as it was not ncces-
sary to the decision of the case.
The Court Does the Court say a judge
or the judge2
Mr.. Crump: 1t says the judge, but pre-
sumo there were more judges than one.
But will show that in Virginia there is
but one judge-three in one. 14th Bar
bour's Reports people us. Cook), Supreme
Court of New York, was read. In this
case some of the officers were sworn on o.
lcndori7s French Grammar and Watts's
Hymns, which was held not to invalidate
the election. They proceeded for q time
with only one clerk, which was also held
t;op WAC declared invalid heeause a clerk