Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-08

the governor should be considered a
pro tempore appointment within the
meaning OF the constitution
The act further provides that mo
commissioner shall either directly or
indirectly receive any salary or COM
pensatlon for his services as a COM
missioner. or for acting as an officer
of the said corporation" The gen.
eral effect of the act in question is to
make these commissioners mere
agens for the performance Of certain
agents for the performance Of certain
are not officers within the meaning
Of the constitution prescribing that
the tenure of an office shall not be
more than four years. David v. Port
land Water Co., IA Or. 9S; State ex rel
" George, % Or. 142; White v.
Mears, A Or. 215.
BY the provisions of the act already
quoted the judges and clerks are re-
quired to return the canvass OF the
vote together with the ballots cast to
the county clerk of the county in
which the election is held. In that
connection the complaint alleges
that the judges and clerks of said
special election did not return the
canvass of the vote, together with the
ballots cast thereat, to the county
clerk of said Coos county, Oregon,
in which said county said special cleo
ton was attempted to be held; but
these plaintiffs do allege that said
returns left the possession of said
judges and clerks of election, and
we're forwarded to the county clerk
Of said county in the manner pro-
vided for by the general election
laws Of the state of Oregon, but not
in accordance with said port law"
The law governing general elections
requires that zone complete set of
the tally sheets and the poll book
which was kept by the second clerk,
ballots and stubs, ballot baxes, and
remaining supplies, shall be forthwith
conveyed by one Of the judges or
clerks of the election, to be agreed
upon for that purpose by the judges,
to the county clerk of the county, L.
o. L., section 1928. 1t is admitted by
the complaint that the election re-
turns of the election in question were
thus forwarded to the county clerk.
The effect of the argument Of coun-
sci for plaintiffs is that all the judges
and all the clerks should unite and
attend in carrying the election re-
turns to the county clerk. If the
statute in question were capable of
that construction, yet in the absence
of fraud or corruption none of which
appears, we hold that such provision
would be merely directory. Equity
looks to the substance and not to the
form. For all that appears here the
returns reached the county court
pure and undefled and truthfully dis
closed the result of the election. The
plaintiffs objections on that ground
are not well founded.
We come now to the principal con-
tention In the case: that of the valid
ity of the election in question. Coun-
sci for plaintiffs pressed upon our at
tentlon the cases of Marsden " Har-
locker, As Or. 90; Guernsey v. Nc
Haley, SO Or. sos; and Roesch v.
Henry, "a Or 23O, and insisted that
those cases were decisive of this case
and must inevitably lead to a reversal
Of the decree of the circuit court on
the ground that the election involved
in this litigation was void.
All these three cases arose under
and required construction of what
is known as the local option law,
regulating the sale OF intoxicating
liquors In Marsden V. Harlocker it
appeared that the county court of
Coos county did not meet in regular
or special session or assemble at the
place and time prescribed by law for
the purpose Of ordering local ap-
tion election In pursuance of a pc
tition therefor which had been filed
with the county clerk, but that at diff
terent times and in different places
the individuals composing the court
had signed memorandum purporting
to authorize an election. This court
in that case held that by such separ-
ate actions of the individuals com
posing the county court, no authority
had been given for the holding of
such an election.
The local option law requires that
at least 20 days previous to an cleo
ton ordered by the county court the
county clerk shall deliver to the sher-
III of the county at least five motives
Of the election for each election pre-
cinct of the county voting on the
and It shall be the duty of
the sheriff at least 12 days before the
election to post such notices in public
places in the Vicinity of the polling
place or places, Both the sheriff and
the clerk are required to enter Of rec
ord their compliance with the nro-