New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-11-24

cured" q gourA 'carefnlly stopped and
tied up in andkerchief' was used; where
there Was an omission 10 give the notices
required by law to two inc0nsiderab'e
| places within an election district: where the
returning officers did not meet tor the pur.
pose Of making their return until after
the time appointed by law: where the
poll clerks appointed by the sheriff
were not sworn until after the election, or
were not sworn at all; where the number Of
votes, being required by law to be set down
in writing, was set down in figures; where
| the return Of votes was nnsealed instead Of
| being sealed mp. as required ov law: where
the votes were returned after the time pre-
scribed sy law: where the opening ot the
! meeting was delayed for tw: EOur. beyond
I the time fixed: where the officers pres,.iing
! at an election, in the belief that illegal
votes had been received, stopped the bal
I loting and commenced anew: where the
warrant calling the meeting for an election
\ did no: specify the tiu,. wien the poll
would be opened: where the pol! w:.s not
! kept open each dav the number Of icnrs
l required bv law. In all :hese cases. there
being a substantial and good election, hot
l ~ithstandiug the irregularities complained
| Of. the proceedings were not inv .iidate!.
| the following eases OeiDS referred - IN
support of these points,
Haywood on Cunnty Eicc.;ors. .li.
! Golden vs. Sharpe: Clarke 81 HaIi. 1863.
! :"Van Rensselaer, ys. Van Alien; Clarke Il
Hall. :3.
Arnold vs.. Lea: Clarke & II III. COL.
! Lyon Va. Smith. Clarke 4 Han. l0i; OrS.
| ney Il Shetland. Frazer l, 1863: but see Sea.
! ford. Luders. s., ).
Case Of David Bard, Clarke & Hall. ll6.
| Portestield IS. Mccoy. Clarke & Hall.
2H.
Colchester. Pickerell I, SOB. 5o6. 5O7.
] Easton Va. Scott, Clarke &. Hail. !12
| Mallary vs. Merrill. Clarke Il Hall, 32s.
Draper vs.. Johnston, Clarke &. Hall, 7O3.
| Spaulding VS.. Mead. Clarke t. Hall, l57 /.
Standish, Gushing, $. e. l.. 81.
Chatham, Gushing, s. l. L., 423
| West Boy ylston, Gushing, 5. Il l.. 39i.
Colchester. Pckerell !. 500; Limesick,
Perry 4. Knapp. 355.
Cochrane & Rove. 2as: Warwick. Cush.
| ing. > g. l., 10l.
The law is succinctly stated in regard to
! certificates. in the case previously cited
from Brightley's leading cases on elections:
although tne vote might have been in.
formally certified. that would make no
and not at form. A literal compliance
with tue required form is not required in
any case, If the spirit of the law be not yio.
lated; and the governing principle in all
cases is t. clearly ascertain the intention OF
the voters: if a defect existed in the certiti.
cate that might be supplied at any time. by
the judges and clerks. whose duty it was 20
make the same before the vote was count.
ed" Under these principles, then. section
eight OF the act Of 1873. relating to qua!itca.
tiOn of the commissioners: section thirteen.
in regard to list of votes; section forty. three,
providing for the counting of the ballots.
statement Of votes, tally sheets and their
disposition are directory only. and their
non observance, as welt as that Of the others
relating to Iuerc forms, will not invalida,e
the election or the returns. Connected
with other suspicious circumstances their
violation might form a ground of rresump-
tion of fraud which it would be the duty Of
the board to investigate. But if the board
be satisfied that the returns. certificates or
statements be bona tAe, and in substance
correctly report the result Of the election.
then the non observance of torn should not
vitiate. In opposition to these declaratory
clauses of the act we can refer to one which
is sacramental and peremptory. ana which
has for its object not the ascertain.
ing OF the result Of the election,
but the setting Of it aside On the
ground of improper practices defeating the
will of the voters; and here all the forms
must be strictly complied with betor. the +!
board can take cogniZance Of 1t. Section !
words or their equivalent" spoken Of by |
Cushing, the section using the words .'ex. !
clude' in the sense that the board shall not |
count returns when protested in the form |
required by the act until investigated and /!
satisfied of their fairness. Here form is !
sacramental, and there must be literal !
compliance with the terms vi the statute. |
We have seen that one of the duties of a |
Returning Board is ''to apply such ballots /
as are in any respect imperfect to the |
proper candidates or offices for which they |
are intended, provided the intent is sutii.
GENTLY indicated by the ballot in connec. |
tiOn with such facts, SO that extraneOus
evidence is not necessary for this purpose"
Cooley, Constitutional Limitations, 623.
A few examples of cases decided will
illustrate the doctrine: "The
name on the ballot should be clearly ex.
pressed, and ought to be given fully Errors
in spelling, however. will not defeat the
ballot if the sound is the same, nor abrevi-
atiOns, If such are in common use and gen. ]
orally understood 40 that there can be no
doubt OF the intent. And it
would seem that where ballot which con.
tains only the initials Of the Christian name
1esignates the person voted for with the |
same certainty which is commonly met with
n contracts and other private writings, and
the Intention Of the voter can not reasOne
.bly be- open to any doubt" Cooley Con.
Lin. Cos.
In Attorney General vs. Ely, 4 Wis. i29.
votes for M. d. Carpenter, NJ. T. Carpenter,
md Carpenter, were counted for NJ. II. Car |
,enter, because the court said the intention
II the voter, it is apparent, was to vote for !
u. H. Carpenter, he being the only person
II that name who was candidate for the
'tfice. II Wis. 55l, q N. Y. "a. In s N. Y.
i, the court said that the Returning Board
must take cognzance of such facts Of gen.
raj notOriety and held: at seems to us
hat in every case where the name given on
he ballot, though in some particulars I'm.
erfect, is not different from that of the |
andidate and facts of general notoriety
hat it was intended for him, the canvassers :
hOuld be at liberty to do what a jury {
7ould afterwards be compelled to do .
cunt it for such candidate" This is the
ule Of common sense, and under it ballots !;
,r "Burk," "E. T. Burke" IT. Z. Burke" :
Highly IL. J. Highly" or "Higbey," q
hould be given to the candidate for whom
hey were obviously intended. ii
In these instances, as in the whole matter | ,
the law of elections and returning Off I
ers, the well established principle is that &
0 mere matters of form, no technicalities &
lOuld be allowed to defeat the will of the I
eople when once manifested by their votes. {
he substance. the intent, should be pre- d
,rved at the expense OF ali forms. And ! Il
Dly when it is sought TO set aside the
Dpular voice once expressed, is q tenacious ! 2
lherence to form required. The DUTY Ok d Il
turning officer is. in word. to give voice II
nd effect to every vote fairly cast by an G
tellgent view of the law, not s,iha or sup !.
-ess one, save on fraud duly certified ac- I
riding to law, and duly proved according g.
, its requirements; never to increase the | b
ote actually cast, and never to subtract 4
ON il, save by the rejection OF such polls