Bisbee daily review., 1907-01-11
MORRISON Is VICTOR IN CONTEST
Continued From Page One.

Continued From Page One.
 that it is the mandatory duty in this regard might well be said to be con structive, if not actual, fraud.
 The board of elections is not au- thorized. except where no justice of the peace be in the precinct, to desig- nate the place of holding the election. Its duty in other regards is specific and as the statutes do not anywhere say that an election may not be held unless the house or place be designas- ed by the board of supervisors or the justice of the peace, it occurs to me that the situation in such a case isI similar to the case where it be found on the day of election that the place designated can not be used; in the lat ter case it is generally held by the aL- thorities that the board of election may establish polling place and pro- ceed with this election. which will be valid unless perhaps it appears that a considerable number of electors of the precinct is prevented thereby from soting. Instead, therefore, of 1t being malconduct on the part of the board of elections to hold the election, under the facts set up in the complaint. it occurs to me that it was its manda- tory duty to hold such election, and to select and provide a place for such election, if none was otherwise pro- Vided.
 The object sought by the machin- cry provided for holding elections IS to ascertain the will of the people with regard to what persons may hold the offices. It should not be used for the purpose of defeating this will where 1t has been fairly and freely ex- pressed, and wherever it appears that an election has been held in precinct duly established and conducted by the officers duly and regularly appointed for such purpose 1t must be presum- ed that there has been a full, fair and free expression on the part of and such precinct, unless 1t appear that fraud either actual or constructive was committed by said board. Upon principle, therefore, the case of John stone vs. Robertson may be distin- guished from the case at bar. In the former case the board of elections changed the designated place without authority, in the latter case the board of elections proceeded with the per formance of their duty, notwithstand- ing a failure or the part of other off cers to perform their duty. In my judgment instead of predicating mal- conduct on the part of the board in holding the election under the cir cumstances in Prescott precinct north" we should hold that it was their mandatory duty to hold such an election, provided they were able to do so in such a way and at such a place as to insure a fair and full vote of the precinct.
 "Supposs the board of supervisors designated a place, but such place be found, on the morning of the election. unavailable for the purpose, would it not, under those circumstances, be the mandatory duty of the board of cleo tions to hold the election, providing another suitable place be found for such purpoSe? As I have said before, there is ample authority to sustain this view. Tn what respect does that case differ from this where it appears that no place was designated by any one authorized to make such designa- ton or to give notice thereoff2 I con- s.der the two cases analogous.
 T. therefore. conclude that the holding of the election by the board of electors In Prescott precinct north was not in itself malconduct, and, as no other ground appears in the com pIaint. the demurrer must be sustain ed and it is so ordered"