The Alaska daily empire., 1917-03-21
tCOntinued from Page TwO)

for every SO voters in the recording district and that the Commissioners in those recording districts shall de- liver the proper number of such ballots Co the judges Of election in each pre- CinCt. and Section l9 provides that when ballot Is marrcd by the voter he may receive n second. and 1T nec- oss0ry third, but no more, and that tho marrod ballots must be preserved by Che judges of the election and placed wlIh the unused ballots.
 Section l9 provides
 That any voter who Is blind or
 otherwise incapable Of marking his
 or her ballot. may demand that
 the judges of election assist him or
 her, and the judges of the election
 shall do SO.
 Ut is not left for some one else to do thiS-NO one else can do it.
 Section 24 provides a heavy fine for any officer who wllfully and corruptly fails Co do his duty under this Act.
 Section 90 provides
 'If any judge. inspector. clerk
 or other officer of an election shall
 open or mark. by folding or other
 wlsc. any ticket presented by such
 clcctor, at such election, or at-
 on, or suffer the same Co be done
 by any other person, before such
 ticket is deposited In the ballot box,
 such judge, inspector, or clerk shall
 be guilty of q felony"
 Section 3i provides against the un- lawful printing. or distributing Of these official ballots, and Section 3S against the having of them iu ones possession and against the COuntCrfcitinE Of them,
 l think the foregoing considerations Of the evil Co be rcmcdicd. the intent and manifest purpose Ot the LeEisla- turc tO remedy it the appropriateness and very efficacy Of the remedy adopt cd. iC mandatory. and the total insuf- fipiEBpys n u dlFRFNnFU ufnfnfA cdy it, coupled with the provisions Of the Act heretofore mentioned clearly evidence the intention Of the LcGiSla' turc that no loop hole should be left through which the old system could crawl back into voguc-clcaTly manifest their intention that no non official bal lot should be taken as the expression of the will of the electors or should have any efficacy whatsoever. In the very nature of things such must be the consequences Of nO-Offici1l bal lots, also tho entire Act fails of its purpose and it might just as well not have passed IT, notwithstanding the statute designed to remedy the evil or open voting, notwithstanding the safe guards and the checks which the stat ute has thrown around the new SyS- tenn. voters are freely permitted to cast non official ballots. then Indeed was the Act of the Legislature but "a sounding brass and a tinklinE cymb1L"
 There Is, however. one other section OC this Act which, Co my mind, adds Co tho considerations and provisions heretofore advcrtcd Co a prohibition Of such positive nature as to remove all doubt about the character of the Act, and that is the 2ist section. which provides
 no official ballots have
 been received the voters are per
 mitted to write or print their bal
 lots"
 other case arc they permitted Co write tion had provided that the official ballot is the one which is for use at the elections. and the 2ist section is the only section which provides for ballot Is permitted to be cast: that therefore is the only emergency. This under thC canon of construction known Co all lawyers 'Thc expression or one is the exclusion or all others"
 II the Legislature had expressly q Q. in SO many wOrds) declared that a non-official ballot should not be count ed the matter Of rejecting such b1l- lots would not be open to question: fraud or no fraud. disfranChisemCnt or
 Kirkpatrick V. Board of Canvasscrs. H s. F. 40, End column. where the
 NO cause has been brought to
 tnt ulLeNllOn or lllt court lll "lllNl
 it has been held that where n
 mandatory statute has been violat-
 cd it must be further shown that
 such violation was accompanied by
 actual fraud in order Co make the
 ballots invalid, md 1t is not be-
 lIcvcd thnt any such case exists"
 And in the first column Of same page
 Such statutes are intended Co
 prevent fraudulent voting and if the
 Legislature is of the opinion that
 n ha HRri1EnI from
 their strict enforcement will more
 than COuntcrbalance the evils re-
 sultinE from the occasional throw
 ing out of votes honestly cast, the
 Courts cannot consider the mere
 question Of policy"
 In favor of thc contention that our Act is directory. Is only the fact that the Act does not say In express terms that no other ballot than the official ballot shall be received or counted: but we have seen that the nature Of m Act as tO being mandatory or di- reCtOry is not determined by tho form of the words but by the Intent Of the Legislature It is mandatory "It from a consideration of tho en- tire Act, its nature and it's object.
 the consequences which would re- suit from not construinE it as man
 datUry would defeat the very Ob- jcCts Of tho legislature"
 (36 Cys. supra)
 Many an Act is held Co bC mandatory although there are no mandatory words and many an Act is held Co be dircc- tory although the words be mandatory -IH construction Ot statutes and cOn- tracts the law looks through the letter Co tho spirit for "thc letter killcth
 but tho spirit Eivcth life
 [ think, therefore that the Act of 1915 was mandatory and absolutely but the official ballot. provided that where no official ballots have been re- ccivcd tho voter may write his own ballot" That is the one and only instance where departure is Huthor- iZcd-It is not an exception. it ls a pruviso:-BcinE a provisO in general statute he who relies upon tho fact that any given case is within tho pro- absence of proof beng within the pro- viso amounts Co the same thing as Drima faCic evidence that the case Is not within the proviso.
 canvaGSlng Bodrd-Creature Of Statute
 Cannot Go Behind Returns
 Now a CanvasSinE Board is a crcat- ure of statute and it's duties and DOW CTS are prescribed by statute. think t will be conceded that the CanvaSsing Board cannot go behind tho returns; but thnt they must canvass them and determine from them alone how much they shall credit tO each candidate.
 RETURNS
 The returns Of an election are those papers documents. and things, and On- y those papers. documents and things. which the statute presCribcs and or iers Co be sent to the officers desig- hated
 ''The question as to what papers constitute the official returns is
 purely a matter of statutory rcSu- latiOn." think this Is the universal rule and that the books will be searched in vain r fir,l nr,,.lhinr. n Ihn rnnlrnrN-