e. Defects and Irregularities. —(1.) In General.— Proof of irregularities, omissions or defects in the conduct of the election proceedings may tend to cast suspicion upon the result, but unless such evidence is supplemented by proof of other facts and circumstances tending to show that the result was actually affected thereby, the evidence has little weight when offered solely for the purpose of setting aside the election.92 As a general rule, proof that such provisions of the statute or constitution regulating the proceedings as are mandatory in their nature have not been strictly observed by the election officials will invalidate the proceedings, but proof of mere irregularities, onis 93 Mich. 283, 94 Am. Dec. 141; Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764; Windes v. Nelson, 159_Mo. 51, 60 S. W. 129; Downing v. Potts, 23 N. J. L. 66; Rathgen v. French, 22 Tex. Civ. App. 439, 55 S. W. 578. Where votes that should have been received, were rejected in such numbers that if cast they would have changed the result, but the evidence was uncertain as to which candidate would have received such votes, the return was not set aside. Young v. Deming, 9 Utah 204, 33 Pac. 818. In a close contest, where it appeared that a large number of illegal votes were cast, and it was reasonable to suppose that each candidate received more than enough thereof to change the result, the election was set aside. State v. Conness, 106 Wis. 425, 82 N. W. 288. And so where the candidate was elected by a majority of one, and it appeared that several legal votes were rejected, the election was held void, although it did not appear that any more than one of the rejected votes would have been cast against the successful candidate. Cushing, Story & Josselyn, 67. Where payment of taxes is requisite to qualify the elector, a sufficient number of votes cast by those whose taxes are in arrears, will invalidate the election. Phillips v. Corbin, 8 Colo. App. 346, 46 Pac. 224. A legislator voting for himself as senator will not invalidate the election. In re Bateman, T. & F. Con. Elec. 80. 92. State v. Commissioners, 22 Fla. 29; Chamberlain v. Woodin, 2 Idaho 642, 23 Pac. 177; Caldwell v. McElvain, 184 Ill. 552, 56 N. E. 1,012; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704; Jones v. Caldwell, 21 Kan. 186; Pettit v. Yewell, 24 Ky. L. Rep. 565, 68 S. W. 1,075; Hardin v. Cress, 24 Ky. L. Rep. 513, 68 S. W. 1,090; People v. Sackett, 14 Mich. 320; Farrington v. Turner, 53 Mich. 27, 18 N. W. 544, 31 Am. Rep. 88; Meyers v. Moffet, I Brewst. (Pa.) 230; Gibbons v. Sheppard, 2 Brewst. (Pa.) 54; Thompson v. Ewing, I Brewst. (Pa.) 67. Failure to explain suspicious circumstances adds strength to the evidence. Blue v. Peter, 40 Kan. 701, 20 Pac. 442; Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218; Russell v. McDowell, 83 Cal. 70, 23 Pac. 183. No irregularity, or even misconduct on the part of the election officers, or other persons, will vitiate an otherwise legal election, unless the result thereof has been thereby changed, or rendered so uncertain as to make it impossible to ascertain the true result. The possibility of injury is not sufficient, but it may be shown as tending to prove the fact of injury. Loomis v. Jackson, 6 W. Va. 613; Word v. Sykes, 61 Miss. 649. 93. California. - People v. Seale, 52 Cal. 71; Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673. Florida. State v. Commissioners, 22 Fla. 29. Illinois. - Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. Kentucky. Elliott v. Burke, 24 Ky. L. Rep. 202, 68 S. W. 445. - Missouri. - Gaston v. Lamkin, 115 Mo. 20, 21 S. W. 1,100; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653. sions, defects or negligence on the part of the election officers in the observance of such provisions as are regarded as directory only, will have no such effect, so long as it appears that there has been a reasonable or substantial observance of all of the statutory provisions." North Dakota. Perry v. Hackney, II N. D. 148, 90 N. W. 483. Oregon. Miller v. Pennoyer, 23 Or. 364, 31 Pac. 830, 40 Pac. 80, 28 L. R. A. 502. All provisions of the law are mandatory in the sense that they impose a duty upon those who come within their terms. It does not follow, however, that an election should be invalidated because of every departure on the part of public officers from the terms of the statute. Weaver v. Given, 1 Brewst. (Pa.) 140; Allen v. Glynn, 17 Colo. 338, 29 94 State v. Gilman, 96 Me. 431, 52 Atl. 920. Minnesota. - Taylor v. Taylor, 10 Minn. 107. Mississippi. - Pradat v. Ramsey, 47 Miss. 24; Word v. Sykes, 61 Miss. 649. Missouri. Atkeson v. Lay, 115 Mo. 538, 22 S. W. 481; Bowers v. Smith, III Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491, 16 L. R. A. 754. Montana. Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218. New York. - People v. Ferguson, 8 Cow. 102; People v. Vail, 20 Wend. 12. North Carolina.· 108 N. C. 196, 12 S. St. Rep. 51. North Dakota. State v. Taylor, E. 1,005, 23 Am. Perry v. Hack ney, II N. D. 148, 90 N. W. 483. Pennsylvania. - Batturs V. Megary, I Brewst. 162; Thompson v. Ewing, I Brewst. 67. Virginia. - Nelms v. Vaughn, 84 Va. 696, 5 S. E. 704. An irregularity not occasioned by the agency of a party seeking to derive a benefit therefrom, and which does not deprive any voter of his franchise, or allow the casting of an illegal vote, or cast uncertainty upon or change the result will not affect the validity of the election. Piatt v. People, 29 Ill. 54; Gass v. State, 34 Ind. 425; State v. Avery, 14 Wis. 122. If the true result can be ascertained with reasonable certainty. People v. Cook, 14 Barb. (N. Y.) (2.) Irregularities That Will Not Invalidate. 95 In the absence of any showing of fraud or injury, or unless the law expressly declares the irregularity to be fatal, proof of the non-performance by the election officials of a mere ministerial act, or its irregular performance," will have no weight when offered simply for the purpose of 259; McKinney v. O'Connor, 26 Tex. 5. An election will not be set aside because of a failure of the officers to observe a directory provision of the statute for the maintenance of order on election days, whether such law is constitutional or not, and if it is unconstitutional it will not render the election void. Andrews v. Saucier, 13 La. Ann. 301. 95. Gilleland v. Schuyler, 9 Kan. 569; Bowers v. Smith, III Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491, 16 L. R. A. 754. The design of all election laws is, or should be, to secure a fair expression of the popular will in the speediest and most convenient manner, and failure to comply with statutory provisions not strictly essential to attain that object should not avoid an election, in the absence of language clearly showing that such was the legislative intent. Davis v. State, 75 Tex. 420, 12 S. W. 957; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653. 96. Bourland v. Hildreth, 26 Cal. 161; Gorham v. Campbell, 2 Cal. 135; State v. Board, 17 Fla. 29; People v. Hillard, 29 Ill. 413; Dishon v. Smith, 10 Iowa 212; Bates v. Crumbaugh, 24 Ky. L. Rep. 1,205, 71 S. W. 75; Graham v. Graham, 24 Ky. L. Rep. 548, 68 S. W. 1,093; People v. Kopplekom, 16 Mich. 342; Taylor v. Taylor, 10 Minn. 107; Pradat v. Ramsey, 47 Miss. 24; West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Mo. 422; Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218; Pitkin v. McNair, 56 Barb. (N. Y.) 75; People v. Vail, 20 Wend. (N. Y.) 12; In re Wheelock, 82 Pa. St. 297; Hunnicutt v. State, 75 Tex. 233, 12 S. W. 106; State v. Elwood, 12 Wis. 551. Proof of failure to erect election booths, Perry v. Hackney, 11 N. D. 148, 90 N. W. 483; Moyer v. Van De Vanter, 12 Wash. 377, 41 Pac. 60, 90 Am. St. Rep. 900, 29 L. R. A. 670; or preserve the ballots, State v. 96 Judge, 13 Ala. 805; or sign the returns, State v. Board, 17 Fla. 29; Bates v. Crumbaugh, 24 Ky. L. Rep. 1,205, 71 S. W. 75; or the poll books, Patton v. Coates, 41 Ark. 111; or seal the ballot boxes, Pradat v. Ramsey, 47 Miss. 24; or to file tally papers, Mann v. Cassidy, 1 Brewst. (Pa.) 11; Ewing v. Filley, 43 Pa. St. 384; or to keep poll lists, will not affect the validity of the election. State v. Elwood, 12 Wis. 551; Gilleland v. Schuyler, 9 Kan. 569; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; Carpenter v. Ely, 4 Wis. 420. Alabama. Clifton v. Cook, 97. 7 Ala. 114. Colorado. - Kellogg v. Hickman, 12 Colo. 256, 21 Pac. 325. Connecticut. Conaty v. Gardner, 78 Conn. 48, 52 Atl. 416. Florida. State v. Commissioners, 22 Fla. 29; Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764. Illinois. Hodge v. Linn, 100 Ill. 397. setting aside the election.98 And so proof of irregularities or defects in calling or ordering the election," the giving of the notice thereof,1 or in the appointment of election officers will not invalidate the proceedings. Proof that the persons who acted as election officers were disqualified so to act will not in all cases invalidate the dicks, 2 Tex. 217; People v. Sackett, 14 Mich. 320. 98. Keller v. Chapman, 34 Cal. 635; Sprague v. Norway, 31 Cal. 174; Grelle v. Pinney, 62 Conn. 478, 26 Atl. 1,106; Conaty v. Gardner, 78 Conn. 48, 52 Atl. 416; Dishon v. Smith, 10 Iowa 212; Farrington v. Turner, 53 Mich. 27, 18 N. W. 544, 31 Am. Rep. 88; Taylor v. Taylor, 10 Minn. 107; Pradat v. Ramsey, 47 Miss. 24; People v. Cook, 14 Barb. (N. Y.) 259; Deaver v. State, 27 Tex. Civ. App. 453, 66 S. W. 256; State v. Elwood, 12 Wis. 551. 99. Keller v. Chapman, 34 Cal. 635; Russell v. State, 11 Kan. 308; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63. Such as failure to spread the order upon the records. People v. Gardner, 47 Ill. 246; or to sign, certify or seal the same. Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456; or a mistake in the date thereof. Thomas v. Com., 90 Va. 92, 17 S. E. 788. v. State, 34 Nebraska.- Peard New York. - People v. Cook, 14 Barb. 259; People v. McManus, 34 Barb. 620. Pennsylvania. - Thompson v. Ewing, I Brewst. 67. Persons who act and are recognized as election officers and make the returns as such are de facto officers. Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764; Deaver v. State, 27 Tex. Civ. App. 453, 66 S. W. 256; Gilleland v. Schuyler, 9 Kan. 569; whose acts are valid. Quinn v. Markoe, 37 Minn. 439, 35 N. W. 213; Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218; People v. Covert, I Hill. 674; Tucker v. Aiken, 7 N. H. 113; McKinney v. O'Connor, 26 Tex. 5; Prohibitory Amendment Cas., 24 Kan. 700; Hunnicutt v. State, 75 Tex. 233, 12 S. W. 106; Thompson v. Ewing, I Brewst. (Pa.) 67; Bashford v. Barstow, 4 Wis. 567; Whipley v. McKune, 12 Cal. 352. But to constitute an officer de facto there must be some color of appointment and induction into office. Thompson v. Ewing, 1 Brewst. 3 proceedings. Nor will proof that the proceedings were conducted without a full quota of officers, or that some of them were irregularly sworn, or not sworn at all.5 In the absence of some showing of resultant injury, proof of errors or irregularities in the establishment of polling places; or that at certain precincts no election was held, or return made; or that the result cannot be ascertained, does not affect the validity of the election as a whole. And so proof of the irregular opening or closing of the polls,10 or of an unauthorized removal of voting (Pa.) 67; State v. Taylor, 108 N. C. 196, 12 S. E. 1,005, 23 Am. St. Rep. 51. 3. Quinn v. Markoe, 37 Minn. 439, 35 N. W. 263; Pradat v. Ramsey, 47 Miss. 24; State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546. So held where it appeared that one of the clerks was a resident of another ward. Jones v. Caldwell, 21 Kan. 186. Whether or not the proceedings are invalid depends upon the provisions of the statutes. Har din v. Colquitt, 63 Ga. 588. A general state election was held in a village separate from the township election. The village officers acted as officers of election. No other irregularities or fraud was shown and no doubt cast upon the good faith of the officers, nor proof that the irregularity affected the result. Held, that the election would not be set aside. Stemper v. Higgins, 38 Minn. 222, 37 N. W. 95. 4. Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923; Gilleland v. Schuyler, 9 Kan. 569; Pradat v. Ramsey, 47 Miss. 24; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653; People v. Cook, (N. Y.), 14 Barb. 259; Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456; State v. Stumpf, 21 Wis. 586. In the absence of any showing of fraud, proof that but two inspectors acted where the third was not qualified to act, will not affect the validity of the proceedings. People v. McManus, 34 Barb. (N. Y.) 620. But see United States v. Carbery, 2 Cranch C. C. 358, 25 Fed. Cas. No. 14,720. 5. State v. Commissioners, 22 Fla. 29; People v. Hillard, 29 Ill. 413; Dishon v. Smith, 10 Iowa 212; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653; McCraw v. Harrison, 4 Coldw. (Tenn.) 34; Deaver v. State, 27 Tex. Civ. App. 453, 66 S. W. 256. 6. People v. City of Los Angeles, 133 Cal. 338, 65 Pac. 749; Collier v. Anlicker, 189 Ill. 34, 59 N. E. 615; Wildman v. Anderson, 17 Kan. 344; Gilleland v. Schuyler, 9 Kan. 569; Napier v. Cornett, 24 Ky. L. Rep. 576, 68 S. W. 1,076; Bowers v. Smith, III Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491, 16 L. R. A. 754; Davis v. State, 75 Tex. 420, 12 S. W. 957. Where there is no place designated, if held at a place the use of which is sanctioned by custom, the election will be valid. Steel v. Calhoun, 61 Miss. 556. 7. Pradat v. Ramsey, 47 Miss. 24; Ex parte Heath, 3 Hill (N. Y.) 42; People v. Van Slyck, 4 Cow. (N. Y.) 297; McCraw v. Harrison, 4 Cold. (Tenn.) 34; Louisville & N. R. Co. V. County Court, I Sneed (Tenn.) 637, 62 Am. Dec. 424; Marshall v. Kerns, 2 Swan (Tenn.) 68; Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456. 8. Ex parte Heath, 3 Hill (N. Y.) 42. 9. Powers v. Reed, 19 Ohio St. 189. 10. Graham v. Graham, 24 Ky. L. Rep. 548, 68 S. W. 1,093. Where the polls were not opened on time and it appeared that but one person was prevented from voting, and it did not appear that his vote would have changed the result, Hankey v. Bowman, 82 Minn. 328, 84 N. W. 1,002; or where the election officers took a recess for dinner, Board of Supervisors v. People, 65 Ill. 360; Jones v. Caldwell, 21 Kan. 186; Morris v. Vanlaningham, II Kan. 269; or where the polls were not closed at the proper time, it has been held that the return would not be rejected. |