The Alaska daily empire., 1917-02-28


 1 mort of tuC results unless uI a oHIf-
 artur Go effect m uhsEuclon 70 lAt ! free and intelligent casting 'l lhr Noit' or Co thu uHcurIUiumcut ui the result . OR UNLESS THE PROVISIONS AF- ! FECT AN ESSENTIAL ELEMENT OF THE ELECTION, or unless ll as ] expressly declared by Che s9 tute that 1 the particular act Is essential to IHv | validity of an election.
 ! Applying the law as cnuncIatcd in the ! opinion quoted, many irrGGuiArluSs ll' an election proceeding, lncluulnE uSN iN- l tiOns from the form or oIIIGLu Do"oSS, may be dlsrCggrdCd Us not affecting Jhc ! merits of an election and and not aHCct- ! ing an essential element ui the election. l being matters Ot form rather Nhah ol ! substance. The courts E0 a, great |Iy 1 to sustain the validity Of election, the ! conduct Of which is In many respects 1 far from in compliance with thc fcEulA- tions imposed by statute. But when We consider thc oDJccJ or the Australian ballot law it is ot once apparent that a total disregard or us provisions would entirely defeat the puI- pose of the lawmakers. ShEht depart, probably would not be vital. but 70 en- tircN dispense with them, would ccr- tniuly both affect thc merits and al- feet an essential element oi the clrc- tion." that is the element ot secrecy which is the primary object sought |" be attained by Che law.
 "ThIs being true. court will not in-
 vcgtiEatc Co ascertain whether or not
 the disreE8rdIUg ut this 'cSsentlaI cl-
 cmcut" going as it does Co the merits
 of the election" did lu fact in a Eivei
 case affect the apparent result Ot the
 election" Tuutland V. Noble, l3o N.
 W. 292.
 In other words. it is enough that It's necessary tendency would be to aIlect tho merits Of the election.
 Tho fHllDMITw also tNUIDaStS lNe gem cV0l rule:
 "Thc statutes usually prescribed the
 size and form of the ballots and Jhe
 kind ut paper on which they arc Co be
 printed. and prohibit any marks iiE-
 urcs or devices upon when one 9,, o@'.n @
 br dlstiugulghCd from another These
 statutes being designed Co preserve the
 secrecy of the DNllut and to prevent
 fraud intimidation and bribery, VIII
 generally be considered mandatory; and
 this will be so iU an cases where ih"
 statutes provides that ballot vary
 ina from Che requirements Ol th" law
 shall not be- counted. but li lhla pIu-
 Nseiuu fs lucEiur while it iH the duty
 Uf che uIect'uU officers Go refuse To rec
 trve tLr ballots iI che drFlnloNs rom
 tEu law age manifest. if they has" been
 received they should hot br rejected
 ]. tH. variations are but trililnE. lt iS
 necessarily impossible IN iIF onWN any
 general rule by. which 70 uylyINl.Iihyy .iy
 what as @ material vgrlaupn rom lhc
 vaou'rnd form, within the incoming ui
 e.FF -..fuIls. and each case must Doc
 determined from i.s own facts and Clr-
 cuma.nurna." -lm. & Eng. Enc, ?d Vol
 iH. page ,-.,
 This board 3s not confronted with Cas. MG.T. there aH E.H.| d,NhNnN from fnH regnIHuous prescribed by law: hut where uEura Is total disregard
 Nv eorr,us.on therefore is that lho Alaska Territorial Act Is mandatory ln #1 frr nH .t relates fn iNn manner gi pre- uTrt.n" and form u. lln ballot I- IN.- lows therefore. lHHf ballots east mot ngn- pared Ng the proper officials and "a'- slUH."..F unH"TmlM- l' ,"' sl'l...I l.' #EHw#F. |H tnH Trr.I...n aa NH"sN NIN.lr .a-. was H total failure t' comply w.lh ..u provisions u. th" statute. and lH" nHl- .o.a ansf !u those precincts therefore nr" invalid and cannot nn counted. unless some other provision Ut iN" statute gWr lh0g.ss tH..r nslHE accepted 'a NA..a. E therefore remains Go consider LN" ape pI|raueu uf Section 2l of thw Territorial Act. Co the question submitted. Again quoting section 2l.
 "Tuat iu any precinct where thc
 election has been legally called and no
 uLcinl ballots hay" been received. ihr
 voters are permitted Co write OF print
 their ballots. but the judges or cl.C-
 uou shall, iu this event certify Co the
 Inuts which prevented the. use ol the
 .nfrHI HnIDits. which certificate must
 accompany and bc made % part of the
 election g.tUruH.'
 The halglH included with tHe returns from tnu precincts fn question: are nol, and dU rol pWport Go be taa official oNl- lots hu. were prepared by Che voters 1 themselves OF by some person for them. !
 This by Section 2l iS allowed to be done "whcrc no official ballots have been received"
 section 2l is a prOvisO creating an CN- coptiun from the operation of the statute. l Such provsOs must be strictly construed. ! This Is the general rule. 36 Cyc. llC2'
 ConstruiTE the election Act as mauda- tory. the law of Alaska which is Co be applied Co the case under consideration. Is in effect as follows:
 None but official ballots shall be
 voted except in precincts where, no
 official ballots have been received
 Section 2l further provides that in the event no official ballots have been re- Coivcd, the judges of election shall cer- ufy Co the facts which prevent the use ot the official ballots, which certiilcaJc must 1 accompany, and bC made part Of the election returns. The purpose Ot the lat ter provision is apparent Without the certificate Of the judges, the canvaSSnE board would have no means 9t ascertain inE the reason the official ballots were not used. It has been suggested that tho very fact that no official ballots whatever were used in tho precincts m question, would give rise to the pre- sumption that none were received. There is no such legal presumption. Very pos sibly. this might have been the case, pos sibly it might not have been. To assume the existence Of such 70 presumption would entirely nullity the Act, and dis pcnsC with the necessity or using oll- Cial ballots at all. The truth is. there is no presumption of fact, one way or the other The uOn-omcial ballot is prima facia Illegal. and canont bc counted, cN- Cept under certain circumstances. to- wit where no official ballots have been received. On the face of tho returns from tho precincts in question, the bal- lots cast arc all illegal, because not official ballots.
 The canvassinE board has been fur nshcd with no evidence at all of the OK istencc Of any legal reason why official ballots were not used. The law provides but one method of furnishing evidence Of such reason, and that is by the certificate of the judges which must, accompany: and be made part of tho returns This board has no such certificate be- fore It. nor any other evidence of tho req son for the use Of non-Oficial ballots.
 The word Must is ordinarily to be construed as imperative and mandatory, and always to be SO construed unless ti,. tv.t.-tF,v .f strig1n fffrH ig ngl-