The Alaska daily empire., 1917-03-21

These questions may De epltOmlEed In one inquiry. to-wit: Was t the plain duty of the Canvasslng Board not to count the returns from the precincts questioned in the plcadings, to-wit: Name of Precinct Wickcrsham SulZer ChoggiunS ..,.,..,... 24
 DcCrinE .......,,..', lO
 Nizina ............,..
 NushoEOk ........... ID
 Utica .........,.,.... l3
 BoTnifield ..........
 The proper solution of that inquiry depends upon the answer tO one sub sidaTy question: to-wit: Is the Act of the Legislature Of 1915 providing for an Official Ballot 0nd-for Q certain return 70 be made in case no official ballots mauda tory or simply directory? 1T man. dtory. then the Canvasslng Board had no choice but Co reject: If directory only. then it did have discretion to re- the demurrer should be sustained: 1T directory, then the demurrer should be OycTrulcd and the proceedings quashcd
 Stltutes-When Mandatory
 When is statute mandatory and fully answered in 3G Cyc., ll57. and many authorities are there cited up- holding the text To analyZe those au- thoritcs or Co add Co them would but prolong this opinion Go greater length
 
 10 the matter: Suffice it tO say, the principles laid down are truisms in the law. CyC, says:
 "A mandatory provision in a stat
 ute Is one, the omission to follow
 which renders the proceeding 10
 which It relates Illegal and void;
 while a directory provision is one,
 the observance Of which is not ncc-
 csslry to the validity of the pro-
 ccedings. Whether particular
 statute Is mandatory or directory
 does not depend upon It's form, but
 upon tho Intention of the Leglsll-
 ture 10 be lscertained from a con.
 5deritlcn of the entire act, Its na-
 quence5 that would result from con.
 struIng it one way or the other.
 When particular provIs-
 lon Of statute relates tO some im-
 material matter as to which com
 piiancc with the statute is mere
 matter of convenience rather than
 substance, or where the directions of n statute are given merely with
 view Co the proper. orderly and prompt conduct of business. tho pro-
 vision may generally De regarded as directory. When a fair lnteTpre.
 tltion of q statute which directs
 acts or proceedings 10 be done In certain way, shows that the legls-
 llture intended a compliance with the validity Of the act or proceed
 Ing then the statute must be regarded as mandatory. " Stat
 uteS which confer upon a public body or officer power to act for the sake of Justice. or which clOthc a public body or officer with power Co perform acts which concern the pub lie interests. or the rights Of indiv- idunls. although the language Is per lnissivc merely, will be construed as imposing duties rather than confcrr- iug privileges, and will therefore be regarded as mandatory"
 (36 Cyc. 115O
 We might, however. add this:
 'Whcrc the provision of a statute is Of the very essence Of the thing Co be done 1t is mandatory"
 Hope v. HenEatc. 4l N. W. lO02.
 Apollo v. Chopper, A Pa. Super. Court. 396.
 and this
 When the terms of statute are such that they cannot be made cf- fCctlyc to the extent Of giving each and all Of them some reasonable Op- cratiOn without Interpreting the stat ute Gs mandatory then such inter prctGtiOn should be given on it."
 Ofncld V. Davis, 10 s. E. BIO. and this
 Since the first consideration Of the state is to give effect to the cx- pressed will Of the majority. it is directly interested in having each voter cast n ballot in accordance with the dictates Of his individual Judgment Recognizing the princi- uniformly held that when the stat ute expressly or by fair implication declares any act to bc essential Co a valid election. or that an act shall be performed in l given man ucr, and no other. such provisions
 MaucE V. Brown x. W.TSi5.
 Australian Ballot
 Striving then to get at the lcgisll- | i've intent in Cnacting the Australian | Ballot Laws we inquire what was tho ,ausc of the legislation; what evil ! vas there to be remcdied: how was 1t | ought to remedy 1t; what is tho pur- pose Of tho ncts and how will that pur- ,ut upon them. for we must bear in hind that in the construction of a tRtutc the legislative intent must be made effective if 1t can possibly be lone without doing violence to the plain crms of the Act.
 The system of voting which prevailed nthis country before the introduction f the Australian Ballot, was fairly live with opportunities for the grosSest rauds and those opportunities were too ften improved by ardent partisans or ldlfful and designing manipulators. Our o-Callcd elections "smcllcd to Heaven" They seldom expressed the free choice, he unbought and uncowed will of the too often the political boss, hc interested employer. the bribc-giver. r others yielding sinister Influence ere able to enforce their will upon 'cak or needy voters, and to easily as- ertain whom among their henchmen r dcpendents to reward and whom to unish. There was crying need that ne whole rotten system Of open voting iould be abolished-there was but one , ay Co conquer the evil and that was , tear up the noNious weed, root and , SO fix it CD that the voter i Dted in secret. not with some Evengall andlng over him; @ that he should now who the candidates wero and be cc to choose between them and not