The Alaska daily empire., 1917-02-28

N l total disregard of the provisions of the | legislative Act. The Territorial Act above referred Co provides in substance ! that the Clerks ot the District Court in ! each Judicial Division shall prepare the | ballots for use in their respective DiviS- 1 ions in all elections. Then follow CCr- l tain directions as Co the style Of tho bal lot Che color and dimensions Of the blank spaces for the insertion Of names of candidates not printed upon thc bal lots. and other provisions common Co thc Australian ballot law.
 Section 2l Of this Territorial Act pro- vidcS as follows:
 That in any precinct where the
 election has been legally called, and no
 official ballots have been received the
 voters arc permitted Co write or print
 their ballots. but the judges of cleo
 ti1n shall. in this event. certify Co the
 facts which prevented the use of the
 official ballots, which certificate must
 accompany and be made part oi the
 election returns
 An authorities are agreed that the con trolling purpose Of the Australian ballot law iS Co secure a secret ballot, Co the end that the voter may fully and freely vote for hts choice Of candidates unin- that corruption ot his vote may be pre- vented. There is great confusion ot authorities as Co whether such laws are Co be construed as mandatory in all respects or merely directory. some courts going Co the extreme m holding the bal- lot legal. though not in statutory form. being inclined in the absence Ot proof ot fraud. 10 subordinate the requirements Of the statutes Co the asccrtalning ot thc intention of the voter and the will Of the majority. This view Of the law Is cODCiscly expressed in the case Of Horse fal let nl vS. School District. li3 Mo. App. I54 as follows:
 We think it may be said to be. the
 established rule In this state. as it iS
 generally in other Jurisdictions, that
 when a statute expressly declares any
 particular act to bg essential Co the
 validity Of m election. then the act
 must be performed in the manner pro-
 yidcd. or the election will bC void,
 Also it the statute provides speCihCnl-
 lv that a ballot not in prescribed form
 shall not be counted, then thu prOvls-
 ion IS mandatory and the courts will
 enforce it: but 1T the statute merely
 provides that certain things shall be
 done. and does not prescribe what re-
 suits shall follow if those things arc
 not done. then the provision is directory
 merely. and the final test as Co the
 legality Of either thc election or the
 ballot Is whether or not the voters
 have been given an opportunity Co cN-
 press. and have fairly expressed. their The foregoing rule hTS- been applied iD many cases where the ballots provided by JhOS" whose duty it was Co prepare allflls AlA ihA NAIA'AlN N'lllhlll llA Nt All' statutory provisions. In some oi the cases. the ballots were only slightly ir- regular. ard there is "a hopeless confusion Of authorities as Co what departures from the statutory reQuir r"m@GtS are, and what are not. fatal Co the validity ot the bul- lots
 have been unable to nnd any case. however. holding the votes legal where the use of official ballots was entirely dis-
 The effect of applying the rule an u0unCgd in HOrSgfall Ng School District, . Co 'hc case before this Board. where no Co establish precedent encouraging an absolute disregard by both voters and officials 0f the provisions of the law as Co the form of the ballot.
 The Territorial Act. as before stated. [ directs that the clerk of thc District Court shall prepare the ballots for use ln all elections, and It prcSCribcS the form Cf the ballot It does not in express ballots shall bc counted. It does, how ever. so provide by implication. for Sec . tiOn q Ct the Act, quoted above, de- ! clarcs when and under what circum- may bc used. By the common rule Of the wcll-wOru maxim "EN- !. presSiO UniuS Est ENclusiO AltcTius." . applies here, and the fact that the Leg der. certain circumstances other than of !. 0cial ballots may be used clearly shows m intention that they shall not be used rNCept under the circumstances detailed 1 Even Conceding the HorsCfall case to express the true rule. our statute would | nevertheless be construed Us mandatory.
 The HOrsrfal case, however. is not 1 supported by the best authority. Con 1. sidcrnE the purpose of the Australian ballot law, it is plain that it's object would 1. bc defeated if the directions as tO the preparation and form Of the ballot were not regarded as mandatory. The cm- plOymcnt Of express words Is not always necessary Co give law a mandatory character.
 The following from the case of Board | ,S. Din. ITO Pacific liU7, a case invOv- !. ng questions similar tO those here dis . .uSscd. clearly expresses the true rule. . After rcCittng the facts. the Court states: .
 By this it will be seen that we are 1 again confronted with the eternal moot !. of whether an election statute is man.
 datory or directory The pCrpetuity 1. and virtue of popular government can .
 only be secured and maintained by
 providing for the independence Ot the : electors upon whose consent and will 1 it exists. Widespread charges of im-
 proper influences. bribery. and cor . ruptiOn committed on the occasion Of
 elections in many of the states of the | Union. bringing in their wake defeat .
 Of Che popular will and success Co the .
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