The Hawaiian gazette., 1900-11-02
Cooper Quotes Authorities To Back
Up His Opinion.
SECRETARY SAYS LAW ON POINT
OF TIME IS MERELY DIRECTORY
file Holds That More Than Three Booths Cannot Legally Be Used
at one Polling Place in These
Islands.

Cuence have occurred from sunrise tc
sunset. then the judges. under Mr.
Co0per's ruling, could proloug the hour
. closing until the lists had been ex-
hHusted. or until an interim occurred
which would prove to them that there
was no hindrance in the way of other
voters coming to the polls and voting.
IF In precinct 3. Fourth District.
there should be as many voters as in
rrecint ., and yet during the day there
had been several stretches of time
wherein the voters did not avail them
selves of the opportunity to vote. then
the judges would have the right to
close the polls at 5 O'Clock.
THREE BALLOT BOXES.
There VIII b. three ballot boxes, in
stead of two, as provided for IN the
rules and regulations governing cleo
tons. One for Delegate 10 Congress,
one for Senators, and one for Repre-
Srrtatlves.
That is another directory provision, -
said Mr. Cooper. THE ballot box for
Delegate TO Congress is perfectly in
line with the reasoning of the rules
II have prepared the following brief
upon this question which I believe sus-
tains my position thoroughly. In one
IF them the New York Circuit Court of
Appeals takes the stand that If voters
ere In the POLLING room when the hour
for closing arrives and they are legal
voters they can cast their ballots
without prejudice
The brief In full reads as follows:
Constitutional and statutory provi-
sions for the conduct of elections are
either mandatory or directory, and a
violation OF mandatory provision
VIII avoid the election without regard
to the motive Of the persons guilty of
the violation and without inquiry into
the effect OF the result OF the election.
but In case Of n directory provision
the election will not be set aside I'M
less the disregard OF the provision has
been produced in the result OF the
election. When the election Is fair
and honest, courts Will not disfran-
chise the voters unless compelled to
do so by the peremptory requirements
of the law
Directory provisions are such as are
not of the essence of the election but
are enacted as guide to the officers
OF the election. AS to what require
nents are mandatory and what are
merely directory, the cases are not all
In agreement, and II may be difficult
In some cases to determine from the
authorities into what class provision
falls, but II may he said that the ten
dency of the courts and also OF legis-
laiive bodies is not to hold provision
mandatory unless 1t Is clearly of such
character that its violation will tend
to prevent correct determination OF
the result of the election, unless 1t Is
declared in the law that Its violation
shall render the election VOID. This Is
true even II the language is prohib-
tory as TO officers or even II its viola
ton may subject the offending officer
to penal liability. (6 Am. G. Eng Enc.
S25)
II the polls are kept open after the
proper hours to permit legal voters to
vote when there was not time enough
to receive all the votes within the
proper hours, and no Illegal votes are
taken, II would seem AS though all the
votes should he counted. and II has
been held that the requirement to close
Mt sunset Is directory only. Is Am. &
Eng. Enc. 1921
The closing of the outer door of the
room where I'm election Is held. at sun
down, and then permitting the voters
within the room to vote, will not rem
der the election invalid unless II Is
shown either that legal voters. We're
excluded hy closing of the door or that
Illegal votes were received after sun
down. The provisions of the statute
as to time of opening and closing OF
polls Is directory. Is n. y. Court of
Appeals G7)
Failure to observe merely directory
provisions of the election law will not
invalidate an election where no legal
voters are deprived of their votes and
10 Illegal voters are permitted to par
tIclpate, and no uncertainty Is thereby
cast upon the result. GCs III. $40. Schu-
Ter W.. IToEnnD
A departure from the mode OF hold
ing an election as prescribed by stat
ute which does not deprive legal Vo-
tiers OF their right to vote, or permit
Illegal voters to participate IN the
election, or cast uncertainty on the re-
suit, does not affect the validity of the
election. parin vs.. Weinberg ct al.
lS0 Ind 6Gl.)
statutory provisions requiring the
polls to be opened and closed at GER
tain hours of the day are not Ecncr-
ally mandatory. and in the absence OF
fraud ana Injurious consequences
failure to comply with them viii not
generally, Of Itself render the election
void. PaIn on Election, section 3c9)
The strongest case Of all appears tot
be In the New York Court of Appeals
case" continued Mr.. Cooper. There the
doors Of the polling booth We're closed
ut sunset Hrd all those inside the room
were allowed to vote, Notwithstanding
tho hour had long past Thn court said
the hour of opening or closing the polls
was simply directory The law gener-
oily seems TO be that directory rules
az laws may be set aside without inter-
fcrinr with the validity of election
provided that no legal voter is there
by deprived of his franchise, nor any
Illegal voter allowed to vote, ana that
the result IL not made ind annite."
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