Weekly Arizona journal-miner., 1907-01-09

of the votes of precinct where the place of holding tho election had not been designated in any manner pro. vidcd by law, or when the election was held in some other plncc than tha, designated, is misconduct on the part of the Board of Canvasscrs. As | construo the statute, there is no pro vision by which a certificate is sent up by the Board of Election with the vote to the effect that the polling place that was designated by tho Board of Sup crvisors, or by the Justice of the Peace, or by the Judges of the Flee. lion, as the ease may be. It would he their duty to receive the votc as certified Co by the election officers, without regard to the place of holding tho election, and the counting of the votes in such case cannot be miscon. duet on the part of thc Board of Can. vasscrs. Its duty is in this regard ministerial. No discrimination is per. mittcd in that regard. It is not author. izod to hear testimony or entertain ob. jcctions to the reception of my votes upon that ground. So the whole ques. tion must be determined under the first provision of the paragraph and, whether the ground alleged in the con. testant' 's complaint amounts to miscon. duct on tho part of the Board of Judges. The complaint alleges that the Board did not, fifteen days prior to the election, designate the place for holding the election in Prescott precinct, North, nor did the Justice of the Peace, and it is alleged that there was n Justice of the Peace, qualified and acting, of the precinct, designate such place within two days before the election.
 Let us look at the duty of the Judges of the Election in such a case Paragraphs 2305 and 230G read as follows:
 "Thc Board must, nt lcnst fifteen days prior to an election, issue its order designating the house or place within each precinct where the election must be hcld.'
 eff the Board fail to designate the house or place for holding the election, or if it cannot bc held at the house or place designated. the Justice of the peace in the precinct must, two days before the election, and by m order under his hand (copics of which he must nt once post in three public places in the preeincD, designate the house or place, or if there be no Justice of the Peace there, the Election Board, by similar notices posted us in this section provided, may designate the place"
 It all amounts to this; that if the Board does not designate the place then it is ihc mandatory duty of the Justice of the Peace to designate the place, provided there he n Justice of the Peace in the precinct. If there be n Justice of the Peace then the Board of Election has no power to designate the place, because the statute does not give it tho power. If there br no Jus. tice of the Peace, then it .5 man. datory on the Board of Election ,o jcs. ignate inc place.
 IL has been held in California, m. der n statute similar to ours, that the holding of the election at n place tiff. fcrcnt from that designated by the Board of Supervisors or Justice of the Peace is malconduct on the part of the Judges, but do not find any authority to sustain the proposition that where the place was not dcsig- mated by the Board of Supervisors or by the Justice of the Peace, in n pre- cinct where there is n Justice of the Peace, will amount to malconduct on the part of the Election Board. and that is just the point which is present cd here. II appears in the complaint that there was n Justice of the Peace in the precinct, therefore the Board of Elections had no power to act in the promises. The failure of the Board to nct wns not maIconduct in that re. gard. The question is, was the hold ing of the election by tho Judges and the certifying to the vote in that pre- cinct malconduct within iho meaning of the statute?
 confess thnt l have not been able 'o reach conclusion on that question in the short time [ have been able to give to it. Owing to the short time the Court hos at i's disposal before the Supreme Court meets have concluded to reserve my decision on this dcmur- .tl