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(Irregularities will not vitiate the poll.)

An officer de facto is one who comes into office by color of a legal appointment or election; his acts in that capacity are as valid, so far as the public is concerned, as the acts of an officer de jure; his title cannot be inquired into collaterally. The doctrine on this subject will be found in the following cases: People v. Bartlett, 6 Wend. 422; People v. White, 24 Wend. 525, 539, 564; People v. Covert, 1 Hill 674; People v. Stevens, 5 Hill 616; People v. Hopson, 1 Denio:575; Weeks v. Ellis, 2 Barb. 320; 3 Barn. & Ald. 266, 270. Third persons can justify under officers de facto. Weeks v. Ellis, 2 Barb. 320; 3 Barn. & Ald. 266; Wilcox v. Smith, 5 Wend. 231. Had the sheriff or constable arrested a disorderly person, under authority from either of the boards of inspectors, who were merely such de facto, he would have been protected. The person of the voter is as securely guarded under the authority of inspectors de facto, as of inspectors de jure; a challenged voter, swearing falsely before a de facto board of inspectors, is as much liable to punishment, under the statute, as if the oath had been administered by inspectors de jure. Laws of 1842, p. 134, § 1; 2 Rev. St. 681; State v. Hascall, 6 N. H. 352; 2 Cow. & Hill 1101; Van Steenbergh v. Kortz, 10 Johns. 167; Howard v. Sexton, 1 Denio 440. In the latter case, Bronson, J., says, "if parties should go to trial before a judge or justice of the peace, who had not taken the oath of office, I think, a witness who should swear falsely on such trial could not escape the pain of perjury." And it is laid down by Hawkins, 1 P. C., ch. 69, § 4, that a false oath, taken before commissioners, whose commission at the time is, in strictness, determined by the demise of the king, is perjury, if taken before such time as the commissioners had notice of such demise. Bac. Ab., tit. Perjury, A. Such officers, after the demise of the king, and before notice, are merely officers de facto.

The learned judge did not decide that inspectors might lawfully omit, at their pleasure, any of the requirements

(Irregularities will not vitiate the poll.)

of the statute; he merely held, that the votes received in the said district, under the circumstances disclosed, were not to be rejected on the trial of this issue, but should be allowed to the respective candidates. The counsel for the defendant contends, that the failure of the inspectors to comply with any of the various provisions of the statute, is analogous to an erroneous decision of a judge at nisi prius, in receiving or rejecting evidence improperly, but the cases are, in no respect, parallel. The error of the judge, in the latter case, has a direct tendency to injure the party against whom the decision is made; the error of the inspectors, in the former case, has no tendency to injure one candidate more than the other; indeed, it has no necessary tendency to injure anybody. It is the error, moreover, of the inspectors, and not of the court.

V. The learned judge did not err in his direction to the jury, that the votes in the second district of the fourteenth ward of the city of New York, were improperly rejected by the county-canvassers. It has already been remarked, in considering the Chesterfield case, that the county-board has no right to reject a certificate of the district-inspectors, which is fair on its face, and delivered to the proper officer within the time allowed by law; the countyboard should have received and returned these votes to the state-canvassers. This point, however, is not of much importance in this stage of the cause, since either party had a right to go behind the certificate, and show it to be false; had the county-board of New York conducted the canvass legally, the burden of proof would have been shifted from the plaintiff to the defendant.

There are but two points in this part of the case which have not already been disposed of against the defendant, under some one of the preceding heads: 1. Closing the outer door at sundown, and preventing any person from entering the room where the poll of the election was held: 2. Receiving the votes of those already in the room, at the time the outer door was closed, ten or fifteen in all.

(Irregularities will not vitiate the poll.)

In considering these points, it must be borne in mind, that it is not enough for the defendant to show that the poll was kept open after sundown, or that the door was shut before that hour; such a technical deviation from the direction of the statute, cannot avail him, unless he can also show that the hour of opening and closing the poll is of the essence of an election. He did not propose to show that any legal voters were excluded by the act of closing the outer door, or illegal votes received after sundown; he conceded that the questions arising upon those facts were questions of law for the court, and the learned judge made his decision, with the fact distinctly appearing, that no legal votes were rejected nor illegal ones received.

It must be borne in mind, further, under this branch of the subject, that the constitution is imperative with respect to the day on which our annual elections shall be held. Art. III., sect. 9. Should the legislature direct it to be held on a different day, as they are empowered by that instrument to do, such day would be imperative also. The constitution is silent with respect to the hour of the day at which the poll shall be opened and closed; the regulation of that matter is thus left to the legislature, and when they do not interfere, to the common law. The statute requires that the poll shall be open, in the cities, at sunrise, and shall be kept open till the setting of the sun. Laws of 1842, p. 118, § 6. 1st. No elector had any right to complain, if the door was shut and the poll closed at sundown; he was not deprived of any right; the act of closing the outer door, at that time, cannot be urged as prejudicial, unless it be shown that some one was prevented from voting: 2d. The receiving of the votes of electors already in the room, has not been shown to be an error prejudicial to the defendant; whether these votes were for him or against him does not appear; if they were all against him, and were now rejected, it would not alter the result; if they were in his favor, he has no right to complain. 19 Wend. 635, 638.

(Irregularities will not vitiate the poll.)

The statute contains no words forbidding the poll to be kept open after sundown, or rendering the election void, if the poll be not opened and closed as therein required. The inspectors may, indeed, be liable to an indictment for the wilful violation of any of the statute regulations, but that is quite a different matter from the point we are considering. If the particular hour of the day for opening and closing the poll be directory, and not imperative, the learned judge did not err in holding that the votes in the district in question should be allowed to Mr. Welch. The cases on the subject of what acts are directory, and what imperative, have already been stated, and need not be repeated. It has been held, with regard to corporations, that the words "between the hour of ten in the morning and two in the afternoon," are not imperative, but merely directory, and an election may well be begun at any other reasonable hour. Ang. & Ames, Corp. 94. The particular hour in the day is not of the essence of the thing required to be done; should inspectors, on a cloudy day, or misled by a defective timepiece, close the polls a few minutes before sundown, or receive a few votes after that hour, if the time of day be of the essence of the thing, the whole election for that district would be void. I cannot subscribe to this doctrine; I think the statute is directory. Again, to show more clearly that the hour of closing the polls is directory and not imperative, suppose after every voter in the district had deposited his ballot, the inspectors should have closed the poll, although the sun was still an hour high; or suppose they had kept it open an hour after sundown, and no vote had been offered or received; who, in either case, would have had a right to complain? Not the candidates, surely; for, with respect to them, the whole object of opening the poll at all, had been accomplished. If the irregularity were wilful, the inspectors might, indeed, be punished by an indictment; and this, I apprehend, is the extent of the remedy.

I do not intend to assert that there may not be depar

(Irregularities will not vitiate the poll.)

tures from the statutory requirement with respect to the time of opening and closing the polls, and with respect to some other matters, which would put in hazard the whole vote of the district; it will be time enough to pass upon such a case when it arises. It is, probably, impracticable to prescribe a rule which will enable us to determine, in all cases, what irregularities of the inspectors will vitiate an election. It may be safely affirmed, that if the irregularity do not deprive a legal voter of his right, nor admit a disqualified person to vote; if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it; it may be overlooked, in an action of this kind, where the issue is, as to which candidate received the greater number of votes for a particular office, at a given election.*

There is nothing in this principle which holds out the slightest invitation to disorder at the polls. Should a gang of rowdies gain possession of the ballot-box, during or after the close of an election, before the canvass, and destroy the whole or portions of the ballots, or introduce others surreptitiously into the box, so as to render it impossible to ascertain the number of genuine ballots, the whole should be rejected. It would, in such case, be the duty of the district-inspectors to certify and declare the fact. But the county-canvassers, with a regular return from the district-inspectors before them, which is fair on its face, have no right to go behind it, and prove that its estimates are unreliable, by reason of rowdyism at the polls or irregularities of the inspectors. They must act upon it as a regular return, and leave the parties aggrieved to their remedy through the courts of justice. The judgment of the supreme court should be affirmed. Judgment affirmed.

TAGGART, J., dissented.

*See Philips v. Wickham, 1 Paige 590.

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