The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1908-05-28

the board proceeded to conduct the
election without johnson and receiv-
ed the votes cast at said polling
place. counted and made return Of
the same without the said Johnson
participating therein. That Whit.
ney Hess acted ac Judge OF the gen.
eral election held in MifIlin township,
November 5, 1907. That he was not
the regularly elected judge of election
to hold the November election, 1907,
in said Miflin township. That there
was no vacancy in the Office of judge
Of election in MifIlin township on the
morning of November 5, 1907, A e.
Johnson, the regularly elected Judge
Of election being present Mt the time
of opening the polls and demanding
his right to participate in the receiv.
counting, and return of the votes cast
at said polling place. Z. That the
election returns from Miflin township
for said election show that one hun
dred and seven votes were cast for
William Krickbaum for Associate
Judge and that thlrty-nine were cast
for George NJ. Hughes fer Associate
Judge.
"On the part Of the respondent II
is contended that the vote Of Mifflin
township cannot be thrown out, G)
Because the action of Whitney Hess
as Judge was not in fraud of the
rights OF either candidate; neithef
was his appointment fradulently OBJ
tanied; nor did his action or the 40
tion of the board in allowing him to
sit, change, alter or even render un
certain single vote cast at the elec.
tion. (2) Because Whitney Hess
holding and claiming to hold by vir.
tue of valid appointment at tha
June primary election was acting
under color of title, and WAS therefore
as respects third persons, the defacto
judge Of election and his acts as
such are binding on the contestant
and respondent.
"On the part of the contestant 1t is
contended that because the election
in Miflin township was held by a
judge of election who was not legal
ly appointed the return of votes cast
at the poll is illegal and cannot be
counted"
after conceding that the irregular
| conduct upon the part Of the election
officers, is not to be allowed to de.
feat the expressed will of the voters,
unless there is a fraud.or such con-
duct as will alter or render uncertain
the result, the learned Judge in the
court below announced his conclusion
that Whitne Hess was not de facto
Judge of election, acting under color
of title, but that he was mere
usurper, and he therefore rejected all
the votes cast in Mifflin township.
How he could have reached this con.
clusion we do not understand. 1t Is
directly in the teeth of, and Is en-.
tirely unwarranted by the findings OF
fact; for he found expressly that in
truth and in fact, Whitney Hess was
sworn in as judge of election by one
of the inspectors, and that he then
proceeded with the other members
of the board to conduct the election,
and receive the votes, and counted
| and made return of them. So that
beyond question he was actually, in
fact and in deed, the judge of elec-
tion. He performed the duties of
the Office with apparent right, and
under claim and color Of an appoint
ment even though it be granted that
he was acting under a mistaken au
thority. But he was In the exact
sense of the term an officer de facto.
Now the validity of the acts of Off
GERS Of election who are such de
facto only, so far as they affect third
persons, and the public, is nowhere
questioned "The doctrine that
whole communities of electors may
be disfranchised for the time being,
and minority candidate forced into
an office, because one or more of the
judges of election have not been duly
sworn. or We're not duly chosen, or do
not possess all the qualifications
requisite of the Office, finds no sup
port in the decisions of our judicial
tribunals: McCrary on Elections
(4th ed)) 1897, Sec. 251. To sus-
tain this statement the author cites
our own case Of Board VS.. Bank Of
Washington II S. & r, All where
Justice Gibson said (p. 41D: "The
question does not depend on whether
the appointment is void or only voida-
10 ,I,.at a. 49,