decided an election to fill a vacancy, held without notice, valid, was so decided on the ground that the election was held pursuant to a requirement of the constitution of the state of which the public should take notice. On this question of filling vacancies there is some conflict between the courts, but the distinction appears to be made between regular elections provided for by law, and elections of which the electors may be presumed to have notice, and special elections, notification of which is essential to a public knowledge and understanding that that they are to take place.

Thus in the last named case, a vacancy happened in the office of Supreme Court Judge, after the time prescribed by law to give notice that the vacancy would be filled at the approaching general election. The constitution provided that such vacancies should be filled "at the next general election." The court said, that the electors were bound to take notice of a vacancy in that office, without being formally notified, and that those who did so had the right to fill the vacancy.

In Indiana the opposite rule is held, Beal v. Ray having decided, on the same point as that involved in People v. Cowles, that if a vacancy do not happen long enough before an approaching election to give notice the proper length of time, it cannot be filled at that election.

The decisions in California are to the same effect.1
In McKune v. Weller this question is very elaborately

1. People v. Porter, 6 Cal., 26; People v. McKune, Weller 11, Cal. 49; People v. Martin 12 Cal., 409; People v. Roseborough, 14 Cal., 180.

discussed, and, as we have said, the principle laid down that a distinction must be drawn between general and special elections. The law fixing the time, place and manner of holding the former, the electors must take notice of them, and the statutory requirement of notice may be treated as merely directory. But when there is an election to meet some contingency arising, not in the ordinary way, as from death or resignation, and the statute requires that, to fill vacancies, the Governor shall issue his proclamation, the provision is mandatory, and without such proclamation, the election is invalid.

A decision in Michigan, holding an election to fill a vacancy valid, although the notice of the election made no mention that the vacant office would be filled, was put on the ground that it appeared that the fact was so notorious that there was publicity equivalent to notice.1

The courts have, in short, in determining this question of notice, generally squared their decisions according to the rule as stated in Cooley on Constitutional Limitations: "Where by the express provisions of the statute, the election is to be held after proclamation or notice, announcing the time or the place, or both, and where no such proclamation has been made, or notice given, the election is void. But where both the time and the place are prescribed by law, every voter has a right to take notice of the law, and to deposit his vote at the time and place appointed, notwithstanding the officer whose duty it is 1. People v. Hartwell, 12 Mich., 508.

to give notice of the election has failed in that duty. The right to hold the election in such a case is derived from the law and not from the notice. And this rule will apply to an election to fill a vacancy, if the same occurs long enough before the election to have become generally notorious, and if it was in fact generally known."

Duties and Powers of Canvassers.

The duties and powers of the canvassers of election returns are, in most of the states, defined by their statutes regulating elections, and as they are not in all respects uniform it is necessary to consult them. In the absence of any provision to the contrary, however, the rule generally is that the duties of boards of canvassers are purely ministerial and confined to the casting up of the returns as received by them, leaving it to another tribunal to decide upon any question of illegality or irregularity that may arise. While it is held that the title to an elective office is derived, not from his certificate nor from his commission, but from his election,1 nevertheless the determination of the legality of votes is a judicial proceeding, which must be had before a court competent to hear and adjudicate.2 "To admit," said the court in State v. Steers, cited hereunder, "a mere ministerial officer arbitrarily to reject returns, at his mere

1. Attorney General v. Barston, 4 Wis., 567.

2. State v. Steers, 44 Missouri, 223.

caprice or pleasure, is to infringe or destroy the rights of parties, without notice or opportunity to be heard; a thing which the law abhors and prohibits. Admit the power and there will be no uniformity; one canvassing officer will reject for one thing, and another for a different matter; and no man can tell whether he is legally elected to an office, until he consults the notions of a canvasser. The exercise of such a power is subversive of the rights of the citizen, and dangerous and fatal to the elective franchise."

In the case in which this forcible language was used the board of canvassers had thrown out the vote of a county for alleged informality and irregularity. The court gave a judgment of ouster against the candidate who had received a commission as the result of this action.

The Supreme Court of New York, construing the statute of the state, in The People v. Van Slyck, held the same doctrine, saying that the counting and certifying the vote by the canvassers is a ministerial and not a judicial act. "They have no power to controvert the votes of electors. * * * * The certificate is not conclusive. The court will decide, upon an examination of all the facts."1

In the case of Ex-parte Heath and others,2 the canvassers refused to certify to the election of the relators because there had been violence at one of the polling districts

1. The People v. Van Slyck, 4 Cowens (N. Y.), 323. 2. Ex-parte Heath and others, 3 Hill (N. Y.), 42.

during which the inspectors had been separated from the ballots. The canvassers made return that, by reason of this violence, it was impossible for them to declare what persons were elected. It appeared that the relators had a majority in the other districts, and it was not suggested that the result would have been changed had the votes cast in the district in which the violence occurred been counted. The court, deciding the case, said: "In no case we are aware of has it ever been held that the accidental loss of the ballots in a single subdivision of an election district, even though it prevent a return, shall of itself defeat, or, indeed, detract from, the election as it stands on the votes which are properly returned. Once admit the principle that the loss of a part of the votes out of a number which may or should be given at an election, avoids the whole, and it is difficult to conceive how a system of government so entirely elective as ours could be carried on. The principle is the same, whether considered in reference to municipal corporations, to county, district or state elections, or even a federal election for president."

In another case in New York the court described the

duty of the canvassers as a simple matter of arithmetic," and adjudications to the same effect are to be found in several states.1

1. State v. The Governor, 1 Dutcher (N. J.), 348-9; People v. Hilliard, 29 Illinois, 422; People v. Kilduff, 15 Illinois, 500; Bromer v. O'Brien, 2 Indiana, 423; State v. Jones, 19 Indiana, 356; Michigan People v. Van Cleve, 1 Michigan, 362; Dishon v. Smith, 10 Iowa, 212; State v. Cavers, 22 Iowa, 343; Thomson v. Circuit Judge of Mobile, 9 Ala., 338; Mayo v.