The Alaska daily empire., 1917-03-21

luQNfthbce hucu llhll luuNktI uo AN hp- posited in the Post Office?
 But the truth is that this is not q matter for the presumption or the can vassinE Bourd-it is matter or plain language. The statute says but m the use of the official ballots must be stated in n certificate which must accompany and be made part of the election returns"-the statute thus says what cveidence the CanvasslnB Board must have before it before is can count unofficial ballots, and it can substitute none other-lcost Of all a nebulOus presumption.
 It ls urged that if in fact no offic- ial ballots had been received in Chog- giung and the voters were obliged to | make their own ballots or not vote. then to reject the Return from ChoE- glung is to dlsfranchise all the voters | in that precinct. for no fault Of their ! own, but simply because the election | board omitted Co certify Co the fact which was the cause of no official ballot being cast. This in sense is true; on the other hand, lt IS likewise i truo that fl i'm that one precinct of- ficlal ballots had been received but tho ] election Judges had not required them | 10 be used, and if in all the other pre- Cincts the lawful ballots had been used 1 and the 2S unlawful votes nt Chog- giung would change the result, then | all who voted lawfully for Sulzcr are disfranChiscd by the 25 In ChogBiung who cast the prohibited ballots for ! Wickcrsham-I say disfranChiscd for Go nulify by a prohibited ballot the effect of a lawful ballot is virtually to dIsfranchisc the voter Of the lawful Put Rut in truth and in fact the argu- mcnt of possible disfranchiscmcnt does | not enter into the case for the "offic- 1 ial ballot is the only Instrument by means of which the elcctor can ex- press his will at tho election, save m ! the exceptional case provided for in
 "The answer Is that when an
 elcctor attempts to express his will
 at m election by. the use, either
 lots which the law declared shall
 not be counted. the Courts have
 no power to help him. Had these
 ballots been misplaced by design
 between the county clerk and the | candidates whose names appear ! thereon, or some of them, the Vot-
 CTS using them might be as inno- | cent then as they appear 10 be in
 the case at bar; but tO hold, under
 such circumstances, that the votes | must nevertheless be counted,
 would be to suggest an easy method
 of defeating the fundamental pur-
 jose Of the statute
 ! l4 l.. k. A., 629,
 "Thc final deposit of n legal bal ! lot in tho box IS the act or voting 1 It matters not that one sign the
 roster and formally present to the
 election officer what purports to be l his ballot; nevertheless if such bal ] lot is not expressive Of any wish ! or preference of the voter which
 under the law may be considered
 not voted and his vote should not 1 be counted, even in the dctcrmina- | ton Of the number of persons who
 voted at the election" o
 City of lngcwood V. Kew. lS2 ! AEaln,-the action of the Canvassing ] Board neither cnfranchiscS nor dis ! franchises any voter. IL sits merely Co determine to whom 10 issue acer- | tIfcate of election. This certificate | of election is not final. The House Of ! Representatives is the tribunal before which the contest of election comes, In | it's wisdom it may say IT IL chooses | Ut is true that tho certificate Of the | judges of election does not state that l no official ballots were received at ] ChoggIung but it is possiblc-probable, ] Cvcn-that none were received ana that | is the reason the judges allowed these otherwise prohibited ballots to be used, and by inadvCTtcnce or neglect they | omitted Co say that was tho reason; ! at any rate we will investigate thc mattcr-wc will hear oral testimony, we will consider affidavits or get at | the very truth of the matter Tn some other way" Or even. 1T the election board had actually certified that no official ballots had been received and ! that was the reason none had been cast or returned. still the House could go behind those returns in invcstigat- ing tho muttCr-it could say, Ihc matter Is suspiCiouS-it is not likely that no official ballots had been re- ccIvcd--ChoggiunG is cannGry ste ste likely the cannery boss is also the boss Of voters; we are not disposed to believe this certificate of the judges; we will take cXtrancouS testimony about those non-official ballots" These things the House of Representatives could do and say, because 1t is clothed with plCnary power Co seat whomSocYcT lt pleases-CcrtitiCatc or no certificate. But the Canvassing Board has no such powcr--it can consider only the returns as made to it, and it cannot allow those returns to be supplemented by cNtrancOus affidnvits or, by indulSlng in prcsumDuons, make them say what they do not say. Besides, aS aDoyc stntcd. if they arc going to Indulge Tn any presumption which presumption are they to indulge in?
 The Board has no power to pro-
 cure corrected returns or Co re-
 cciyc testimony aliundc either to
 sustain or to invalidatc these re-
 i5 eye. note 5. and cases cited.
 Nr 1fithc argument about disfrunchs- ing the voter. then. might bo approp- riatc if made to the House or ltcprc- scntativcs on tho contest of election but it has no application to the duties of the CnnvassinE Board; but l douDt that the argument is entitled tO much weight wherever made. for the reason that thc elective franchise Is not one of the natural rights Of man but rom the earliest times has always been hcdgCd about with some restrictions or nDgfltiyp statutory nnanCtmpntg.
 "ElcctOnS arc n COntrlNlnCe or
 government which prCscribcs who
 are electors and how they may cX-
 press their will, and it is lcEiti-
 mate exercise Of power to prescribe
 the description of the ballot which
 Oglcsby V. Segman. 5S Miss. 502
 cited in People Y. Board, IA L. R. A. Notrwit6standing incidental dIsfran- '''',S, We would still be obliged to hold
 that 1t would bc far better that
 their votes should be deemed in-
 cffcctual than that the tundamon-
 tai purpose Of m important public
 statute should be subvcrtcd. and,
 in the struggle to save those votes
 by Judicial construction the door
 should be thrown open for evasion
 of the statute which might re-
 vivc evils for more dangerous to
 the public welfare than can pos
 sibly follow the exclusion of a flow
 hundred votes in n sinGc country.
 l4 l.. R. A., D. G30
 (Scc also Slaymaker Y. Phillips.
 42 P. R. lO50 Orr V. Bailey 80
 x. W. 4S9)
 In other words. Much better that few voters of Choggiung should lose their votes than by the positive re- qulrcmcnt for an official ballot should 1. of g1o