Bismarck daily tribune., 1902-10-21

defeated. Peard VS.. State, "a aNeD.
313; Duncan VS.. Shemk, 100 Ind 26.
Finally, we, hold for the purposes of
the motion under consideration. that
the proposed election in the precincts
in dispute, if actually held, will not be
an invalid and wholly void eection, but
will bo merely an irregular election
and one which. in our opinion, cannot
SO operate as to have any injurious ef-
feet upon any substantial rights of vot-
ers or of candidates. 1t is elementary
that mere irregularities in conducting
an election which is fairly conducted,
and which do not defeat or tend to de-
feat an expression of the popular will
at the polls, will not so operate as to
vitiate an election. To this rule there
i's an important exception Where
the statute in terms declares or neees-
sarily implies that any particular act
CT omission shall defeat an election.
the same is, construed as a mandatory
statute, and every such statute is re-
quired to be enforceable strictly in ac-
cordance with its terms. In the case
of Perry VS.. Hackney, 80 N. w. Rep.
1873, this court pointed out in the light
OF authority the distinction between
requirements OF the election statute of
this state which are mandatory, and
cher requirements which are merely
directory, and this court then said,
what is strictly in point here, referring
to an admitted disregard of the terms
OF the election law on the part of pre-
cinct officers. Courts justly consider
the chief purpose of such laws, namely,
the obtaining of fair election and an
honest return, as paramount in i'm
po1tance to the minor requirements
which prescribe the formal steps to
reach the end, and in order not to de-
feat the main design are frequently led
to ignore such innocent irregularities
of election officers as are free of fraud
and have not interfered with full and
fair expression of the voters choice. -
In the case at bar no acts of fraud are
| charged and no claim is made that the
statute anywhere in terms or in effect
declares that any OF all of the irregu-
larities complained of will defeat an
cection. 1t follows that no such re-
suit need be anticipated. On the other
hand, the cases cited below are square
| ly in point to the effect that the partic-
ular irregularities complained of will
not operate to defeat an election.
Davis VS.. the State, rs Tex. 1870; Bell
VS.. Gaulkner, 81 Tex. 1877.
1t must follow. therefore, that no re-
suits which are important or which can
possibly affect the state, it's preroga-
tives or it's franchises or the liberties
of the people can be anticipated as a
result of holding the elect;un which is
sought to be enjcined by this proceed
ing. Under such circumstances this
court under the established rules of
procedure, cannot put forth its original
jurisdiction by using its prerogative
writ of injunction. The mere fact
that illegal action is anticipated is not
enough to warrant the issuing of any
prerogative writ. True this court
has taken original jurisdiction in State
VS.. Lavik, 9 N. D. 461, and in other
cases of a similar nature, arising un-
der the election laws of the state. But
in the cases referred to, the right of
masses of voters to vote for the regular
nominees of their party was directly
and vitaIly involved Nothing at all
similar is presented in this proceeding
and hence these cases are not in point
upon the question of jurisdiction.
Leave to file the information must
be denied and the proceeding will be
dismissed.
All the judges concurring.