The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-12-21

even OF the laws in vogue before our State
was organized, to the present day, the
result must be the same il il be conceded
that the count at that place was lawful
Because when we read the one sentence
and the one section Of the original act OF
1896, from which the existing sections OF
the Code are taken it Is perfectly plain
that the words 'such OF the electors as
may choose to attend" used in section 86l
M. * ", sec. - are meant TO describe
the selisame persons previously mentioned
in section 4S0-and likewise so in the
original act-as every person qualified TO
vote, in the manner directed by the Con-
stitution, who shall attend for that purpose
at any election" etc. That is to say, any
and all persons attending at that precinct
for the purpose Of voting have the statu-
tory right to be present when the return
ing officer and judges shall ''open the box
and read aloud the names of the persons
which shall appear in each ballot and the
clerks, at the same time. shall number the
ballots. each clerk separately. Code, sec.
S6l; NJ. 4 ", sec. i.
The court thinks the place must be the
same and the attendance" the same un-
der either section or under both OF them,
but certainly the mode and manner of the
count and the ELECTORS" entitled to be
present must be the same-if the place
may be different.
Now the prosecuting witness, Bigelow,
did not attend at that time and place, or
at either place, il there may be two, to
vote at that precinct. He was disqualified
from voting there because he had already
voted at his home precinct, and If he had
offered to vote AMI had been challenged
and the authorized questions asked he
would have been excluded because he
must have answered that he had voted be-
fore at the ame election. Code 1854, Nj.
* V. Al.
Ii is true that being a candidate for State
Senator he had right TO vote out of his
Civil District and at this place, aud might
have attended there for that purpose. but
he did not exercise this option or right,
but, on the contrary, chose TO vote at an
other precinct, and was not, therefore, an
elector ut this place. II is an inevitable
result that he was not an elector entitled
TO be present at the count, ii the count
could be made on any such theory as was
adopted and as is implied by the indict-
ment in this case. But the court does not
sanction that theory or implication for the
reasons already stated, and it is repugnant
10 the whole scheme OF our election laws
and leads to inextricable confusion and
disastrous consequences, rs is obvious TO
any intelligence whatever. The judgment
which we give is therefore placed upon the
first ground stated and not that Just consid-
cred. 1t Is true these laws were made TO pre-
vent frauds and should be construed to that
end and the construction placed upon them
here best tends to accomplish that result
no doubt; but because the Legislature
might and should allow all electors, and
especially all candidates, TO witness any
count that they may wish to witness where
their interests are involved, it does not
follow that ii has done so. The laws do
not prohibit anybody from attending an
election precinct during the progress Of
the whole performance, and II the plan OF
holding the election which / have pointed
out us the lawful one be adopted, and
there be a free and open taking OF
the ballots and free and open counting
OF the same us continuous operation at
the place designated by law and recorded,
and all in the presence OF the electors at
tending there for that purpose, all we'll
behaved persons. even strangers and elect
ors at other precincts, and all candidates,
may stand by and see the performance 90
on from the bcginning TO the end, and fraud
is thus reduced TO a minimum II not made
impossible. Il is only when resort is had
TO the unlawful method Of taking the ballot
box TO another place, not open and free 10
all the electors OF that precinct TO attend at
will, but obtaining admission by permits
sion OF some one or more persons usurp-
ing and assuming the function OF deciding
who shall and who shall not be present
at the count, that questions can arise as
TO the right OF anyone 10 be present or
the right of anyone 10 exclude him. There
being no such theory in the law itself,
provision is not made for such proceed
ing or for deciding the questions concern
ing II, but On the contrary, provision Is
made for the punishment OF those officers
Of election who resort 10 the unlawful
method. The result Is that these
defendants not being indicted for the
oiTense they did commit, II the proof be
true, as Il is agreed we may assume Il "a
be for the purpose OF this case, but for acts
not provided against by the penal statute,
the verdict OF this jury must be in their
favor and that they be discharged.