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(Irregularities will not vitiate the poll.)

the challenged voters, and two of the clerks were sworn upon the same book, it being beyond dispute that, in each case, the affiants supposed the book to be a Testament or Bible, and were ignorant of the fact that it was otherwise; to this the defendant's counsel excepted. This exception is not well taken, for two reasons: 1. The neglect of the inspectors or clerks to take any oath, would not have vitiated the election. It might have subjected those officers to an indictment, if the neglect was wilful. Laws of 1842, p. 132, § 19, and 2 Rev. Stat. 696, § 38; Election of the Directors of the Mohawk and Hudson Railroad, 19 Wend. 135; Greenleaf v. Low, 4 Denio 168; Weeks v. Ellis, 2 Barb. 320. These and numerous other cases show, that the acts of public officers, being in by color of an election or appointment, are valid, so far as the public is concerned. 2. The oath in this case, though irregularly administered, was a valid oath. If the party taking the oath make no objection to the mode of administering it at the time, he is deemed to have assented to the particular form adopted, and is as liable to all the consequences of perjury, as if it had been administered in strict conformity to the statute. Cow. & Hill's Notes 705; Ibid. 1503; Cady v. Norton, 14 Pick. 236; Commonwealth v. Buzzell, 16 Ibid. 153. The challenged voters were as amenable to an indictment for perjury, as if they had been sworn on the Gospels. The learned judge, therefore, committed no error, in holding that the votes in Buffalo above mentioned, were properly canvassed and allowed to Mr. Welch.

II. The ballots for Benjamin Welch, Jr., in the several election districts of Herkimer county, in which the specimen ballot headed "State," had at the bottom, "for County Judge, Ezra Graves," were properly canvassed and allowed to Mr. Welch. Whatever effect this might have upon the ballot for county judge, it had none upon other candidates upon the state ticket; the statute forbids inserting upon the same ballot more than one name for the same office. Laws of 1842, p. 118, § 8. The judge

(Irregularities will not vitiate the poll.)

did not err, therefore, in holding that the Herkimer votes were rightfully allowed to Mr. Welch.

III. There was no good reason for rejecting the votes in the second election district of the town of Chesterfield. There was sufficient proof that the gentlemen acting as inspectors were such de jure; and if not, it will be shown under another head, that they were, at least, so de facto, and that that was sufficient to support their acts. The county-canvassers of the county of Essex had no right to reject the certificate of the board of inspectors; it was regular on its face and presented to them in time; the statute has nowhere invested them with the power which they assumed to exercise. The 15th section, which authorizes the county-board to depute one of their number to return the certificate of the district-inspectors to those officers, to supply omissions and correct clerical mistakes, if any exist, and to adjourn in the meantime to allow the corrections to be made, is all the correcting or revising power which the county-board has over the district-board. The corrections in this case are to be made by the latter board, and they are not permitted to alter any decision before made by them. The learned judge was right, therefore, in holding that those votes should be allowed, notwithstanding they had been rejected by the county-canvassers, and were not included in the estimate of the state-canvassers.

IV. The votes given in the second election district of the town of Williamsburgh, were canvassed by the county and state-canvassers, to Benjamin Welch, Jr. The defendant in seeking to reject them, holds the affirmative; he takes upon himself the burden of showing, either that the number of votes has been untruly canvassed, or that some other facts exist which invalidate the certificate. First. From the record it appears that no illegal votes were received in such district, at that election, and no legal votes were offered and rejected; that all the votes given at that election were honestly canvassed to the re

(Irregularities will not vitiate the poll.)

spective candidates, and a true and faithful return of such votes was made by the inspectors; there was no dispute about these facts, and the evidence was received without objection. The defendant, therefore, failed to show that he sustained injury by any act of the inspectors, or that their certificate did not truly state the result of the popular will at that poll. Secondly. The defendant, failing to show the return false, seeks to reject it altogether, on account of the non-compliance by the inspectors with some of the provisions of the election law. There are various duties enjoined by law on the inspectors, the great objects of which are: 1. To afford to every citizen, having a constitutional right to vote, an opportunity to exercise that right: 2. To prevent every one deprived of that right from voting: 3. To conduct the election in such a manner, in point of form, that the true number of legal votes can be ascertained with certainty. If all these objects be accomplished, as they seem to have been in this case, to, reject the whole poll because the inspectors failed to comply with every prescribed regulation, would be, as was well remarked by one of the judges in the court below, to place a higher value on the statute regulation, than on the right itself; it would be a sacrifice of substance to form. It is proper, however, to examine these objections, and to see whether the irregularities complained of have rendered the state of the poll in that district so doubtful and uncertain that no reliance can be placed upon it.

The first objection I shall consider, relates to the inspectors of the election. It appears by the record, that the inspectors who opened the polls in the morning were not regularly sworn, and that they were appointed by the supervisors, town-clerk and a single justice, "inspectors of the election for the second district of the town of Williamsburgh, to act until others are appointed;" it was dated November 4th, 1851. It appears that there were inspectors elected for this district, but they were not present at the opening of the polls. There can be no

(Irregularities will not vitiate the poll.)

doubt that this appointment was a colorable authority for those inspectors, and that their acts in that capacity were valid, so far as third persons are concerned; their omission to take the oath in due form did not invalidate their acts.* The defendant's counsel does not deny that these inspectors were officers de facto; but he insists that their appointment made them inspectors for the entire election, and thus vacated the office of the elected inspectors; and if so, the latter could not act at all, and were not even inspectors de facto. I think this result would follow, if the inspectors in question had been legally appointed under the 22d section of the act. Laws of 1842, p. 117. But there was a defect in their appointment; the statute contemplates that, at least, two of the justices should sign it, without which, in the country towns, there would not be a majority of the appointing power; in the absence of proof to the contrary, we must intend that there were the usual number of justices in the town;t there not being the requisite number of officers concurring in the appointment, it was defective. There was still another defect; the statute contemplates that the inspectors should be appointed to supply the vacancy of those absent; although it is silent as to the duration of their offices, yet, it is obviously for that election; in this case, they were appointed "to act until others were appointed." The town officers supposed that they had the right of making an appointment, during their pleasure; I think they had no such power. The appointment merely gave them a colorable authority, and did not displace the elected inspectors; the latter, on appearing at the polls, had a right, as inspectors de jure, to take the charge of the election and to make the return.

The statute requires that the inspectors, after taking the oath, shall appoint two clerks, who shall take the constitutional oath. Laws of 1842, p. 118, §§ 3, 4. This is

* See McFarland v. Purviance, 1 Cong. Elect. Cas. 131; McFarland o. Culpepper, Ibid. 221; Draper v. Johnston, Ibid. 702.

But see Ex parte Cline, 1 Ben. 338.

(Irregularities will not vitiate the poll.)

directory; if no clerks can be procured, the election is not to fail; the inspectors must perform the duty which is ordinarily devolved upon the clerks. The failure of the clerks to take the oath did not render their acts void. The occasional interference of more inspectors than three, does not prejudice the return, since the whole election was conducted by inspectors who were, at least, such de facto, and for the most of the time, by those who were such de jure.

It is not to be disguised, that there were irregularities in this district for which the inspectors are censurable, and perhaps, liable to be punished by indictment. Had the defendant's counsel contended, on the trial, that these irregularities rendered the state of the canvass uncertain, he should have asked to go to the jury on the question, whether the votes were accurately canvassed or not. By omitting to do so, and by conceding that the questions were ones of law, and not of fact, and allowing it to be proved, without objection, that the votes were accurately canvassed, nothing was left but the abstract question, whether an omission to comply with the statutory requirements in question, per se, invalidated the votes of that district. If these requirements be directory and not jurisdictional, the learned judge was right in deciding that the votes were properly allowed. The cases on the subject of what provisions in the statute relative to elections are directory, and what are jurisdictional or imperative, are elaborately collected and examined by the learned judges in the court below, and I do not deem it necessary to review them at large; I will merely refer to some of them. Doughty v. Hope, 3 Denio 249; Elmendorf v. Mayor of New York, 25 Wend. 696; Ex parte Heath, 3 Hill 43; Jackson v. Young, 5 Cow. 269; Stryker v. Kelly, 7 Hill 9; People v. Peck, 11 Wend. 604; 19 Wend. 143. And see Smith on Statutes 782, 789, where the cases are reviewed. Upon the analogy of these and other cases, the requirements of the statutes which were not complied with, are clearly directory.

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