their participation in the election would probably have affected the result: Ex parte White, 33 Tex. Cr. Rep. 594, 28 S. W. 542. Where election districts are illegally established by the governor, though in good faith and under color of law, an election held therein will not be invalid: Hankey v. Bowman, 82 Minn. 328, 84 N. W. 1002. So, where only two election precincts were created in a city which should have had four under the law, such failure to properly recognize voting precincts does not invalidate an election held therein: Davis v. State, 75 Tex. 420, 12 S. W. 957; Bell v. Faulkner, 84 Tex. 187, 19 S. W. 480.

A change of election districts after a proclamation for an election has been issued, and without any new proclamation, will not invalidate the election held in the new district: Hayes v. Rogers, 24 Kan. 143. And where a board of supervisors has power to change and consolidate election districts, the fact that the board purports to act under the wrong statute is immaterial: Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923.

While mere irregularities in forming election districts will not invalidate an election, yet where no attempt is made to comply with the law, no election districts are established, no board of registration is appointed, and the election is not conducted in accordance with the provisions of the statute, such election will be void and confer no rights upon persons claiming to be elected: People v. Laine, 33 Cal. 55.

III. Election Officers.

a. Defects in Appointment.

1. In General.-As a rule, election returns should not be rejected for any irregularity in the appointment of officers of election: Keller v. Chapman, 34 Cal. 635; Pickett v. Russell, 42 Fla. 116, 28 South. 764; Hankey v. Bowman, 82 Minn. 328, 84 N. W. 1002; People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451; Varney v. Justice, 86 Ky. 596, 6 S. W. 457. An election is not void merely because of such irregularity: Pickett v. Russell (Fla.), 28 South. 764; McCraw v. Harralson, 4 Cold. 34; where it does not appear that any injurious results accrued therefrom: Keller v. Chapman, 34 Cal. 635; and the election was conducted fairly and honestly: Hankey v. Bowman, 82 Minn. 328, 84 N. W. 1002; and there was no fraud practiced: State v. Sadler, 25 Nev. 131, 83 Am. St. Rep. 573, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128. Election officers irregularly appointed are, nevertheless, de facto officers: Pickett v. Russell, 42 Fla. 116, 28 South. 764. And their acts are valid as to the public and third persons, if legally appointed officers could have performed the same acts: Pratt v. Breckenridge, 23 Ky. Law Rep. 1356, 65 8. W. 136.

Failure to appoint inspectors of election at the date prescribed by law will not defeat an election held by officers appointed after the designated time: People v. Police Commissioners, 57 How. Pr. 445; People v. Board of Police, 46 Hun, 296. So the appointment

of officers six days before the time specified in the statute will not render the election held by such officers void, though the statute prescribed that a failure to comply with any provisions of the act would render the election void: Marion v. Territory, 1 Okla. 210, 32 Pac. 116. The reason is that the law will not tolerate the idea of a failure of duty on the part of such an executive officer defeating a popular right: People v. Police Commissioners, 57 How. Pr. 445.

2. Improper Number Appointed.-A failure to appoint the requisite number of election officers will not authorize an election to be set aside, where the irregularity is not shown to have any effect upon the result of the election: Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923; for a statutory provision requiring a specified number of election inspectors is deemed to be directory only: State v. Stumpf, 21 Wis. 579. Hence, the appointment of two clerks instead of four will not affect the validity of the election: Chapman v. State, 37 Tex. Cr. Rep. 167, 39 S. W. 113. And an election conducted by four judges instead of six is valid: Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653. Or where there are only five instead of seven officers: Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456. So the appointment of two additional and unauthorized ballot clerks will not vitiate an election: Dial v. Hollandsworth, 39 W. Va. 1, 19 S. E. 557.

The fact that election judges were not equally apportioned to the two leading political parties, as required, will not invalidate the election, where everything in connection with the election was fairly and honestly conducted: Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653. Such a provision is directory merely, and, in the absence of fraud, is not sufficient ground for rejecting the vote of a county or precinct: State v. Sadler, 25 Nev. 131, 83 Am. St. Rep. 573, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128.

3. Failure to Take Oath.-The failure of one or all of the election officers conducting an election in a given precinct to take the oath required by law will not invalidate the entire election in such district, without reference to its influence on the general result: Whipley v. McKune, 12 Cal. 352; People v. Prewett, 124 Cal. 7, 56 Pac. 619; State v. County Commrs., 22 Fla. 29; Tauner v. Deen, 108 Ga. 95, 33 S. E. 832; Dishon v. Smith, 10 Iowa, 212; Taylor v. Taylor, 10 Minn. 107; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653. Such irregularity cannot affect the result if the election is otherwise fair, and an honest count is had: People v. Prewett, 124 Cal. 7, 56 Pac. 619; Lunsford v. Culton, 15 Ky. Law Rep. 504, 23 S. W. 946; Rounds v. Smart, 71 Me. 380; Heyfron v. Mahoney, 9 Mont. 497, 18 Am. St. Rep. 757, 24 Pac. 93; Wells v. Taylor, 5 Mont. 202, 3 Pac. 255; Stinson v. Sweeney, 17 Nev. 309, 30 Pac. 997; Smith v. Howell, 60 N. J. L. 384, 38 Atl. 180; People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451. This is true, though the taking of an oath is imperatively prescribed, where the failure to take the oath is not by statute pronounced to be fatal to the election: Sanders ▼. Lacks, 142 Mo. 255, 43 S. W. 653. Neither will a failure to take

the particular form of oath prescribed, the officers being otherwise sworn according to law, invalidate an election: McCraw v. Harralson, 4 Cold. 34.

The fact that the jurat to the oaths of judges and clerks of an election may have been informal will not invalidate the election: Ackerman v. Haenck, 147 Ill. 514, 35 N. E. 381. Neither will a failure to sign the jurat to the oath of inspectors have such result: State v. Board of County Canvassers, 17 Fla. 9; nor any omission of his signature by the officer who administered the oath: People v. Hilliard, 29 Ill. 413.

4. Not Appointed by Proper Authority.-While a mere usurper or intruder cannot hold an election, when he is not a de facto officer: Van Amringe v. Taylor, 108 N. C. 196, 12 S. E. 1005; yet the irregular appointment of election officers, such as an appointment by improper authorities will not of itself vitiate an election otherwise fair and honest: Thompson v. Ewing, 1 Brewst. 67. A person may be illegally in office, and yet if he holds under color of title and is a de facto officer, his acts are valid as to third parties: Thompson v. Ewing, 1 Brewst. 67. And to constitute an officer de facto there must be some colorable election or appointment to the office: Van Amringe v. Taylor, 108 N. C. 196, 12 S. E. 1005. It has, therefore, been held that a village election was valid although the village council failed to designate the judges to act at such election: State v. Bernier (Minn.), 38 N. W. 368. So a failure to appoint election sheriffs will not in, validate an election: Demaree v. Johnson, 150 Ind. 419, 49 N. E. 1062, 50 N. E. 376. Neither will the fact that the election officers were appointed by the city council instead of the county court: Fidelity Trust etc. Co. v. Mayor, 96 Ky. 563, 29 S. W. 442. And where properly appointed election officers fail to appear, the electors present may elect other officers, and the ensuing election will be valid: Thompson v. Ewing, 1 Brewst. 67; Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456. If a qualified elector holds an election, and was recognized by the voters as the presiding officer, it will be presumed that he was duly appointed: Roper v. Scurlock (Tex. Civ. App.), 69 S. W. 456. In Kirkpatrick v. Vickers, 24 Kan. 314, the regular election officers refused to attend or act, and two election boards were elected by bystanders at different times, but both were elected before 8 o'clock in the morning, and it was held that while both were prematurely elected, yet the one last elected and last organized would be considered the legal board, where a majority of the electors present at the election participated therein, and the election held by such board was valid.

But a mere usurper cannot hold a valid election, as already pointed out, in a case where a clerk of a duly appointed registrar fraudulently got possession of the registration books, refused to surrender them, and proceeded in defiance of the demands and protest of the registrar to appoint judges of election, open polls, receive votes, canvass them and make returns: Van Amringe v. Taylor, 108 N. C. 196, 12 S. E.

5. Two sets of Officers.-Naturally, there cannot be two sets of election officers, both of which hold elections, and both be valid. We have just noticed a Kansas case (Kirkpatrick v. Vickers, 24 Kan. 314) where the board of election chosen by a majority of the electors was deemed the legally appointed board to hold the election. State v. Commissioners, 36 Kan. 236, 13 Pac. 212, is another instructive case decided by the same court, in which two sets of officers held elections. The election was to determine the location of a county seat. The supporters of one town assembled in a building, excluded all electors unfavorable to them from participation in the organization of the poll, elected officers, and carried on an election. The remaining electors outside of the building, who greatly outnumbered those inside, being denied all participation in the first organization, proceeded to select officers from among themselves, opened a second poll in a wagon, and held an election. The court held that the ma jority of the voters at this precinct had a right to organize a second poll, under the circumstances, and that the returns from such second poll were entitled to be canvassed as the legal vote of such precinct. In Commonwealth v. County Commrs., 5 Rawle, 75, where two sets of officers conducted elections, both votes were deemed invalid; the first election held by one set of officers, because it was not held at the proper place, and the second held at the proper place, because not conducted by competent and legally qualified officers. While there are regularly appointed judges of election, special judges cannot be appointed and conduct a valid election: Phillips v. Corbin, 8 Colo. App. 346, 46 Pac. 224.

6. Ineligible Officers.-The fact that officers who hold an election are not qualified to do so will not usually invalidate an election, where it is otherwise fairly and honestly conducted: Wells v. Taylor, 5 Mont. 202, 3 Pac. 255. Whether eligible or not, they are officers de facto, and so far as the public are concerned, their acts are as valid as if they were officers de jure: Swepston v. Barton, 39 Ark. 549. So the fact that some of the precinct officers are ineligible is no ground for the rejection of the vote of such precinct: Quinn v. Markoe, 37 Minn. 439, 35 N. W. 263. Thus a minor acting as clerk of an election is an officer de facto, and the will of a majority of the electors will not be defeated by reason of this fact: Bell v. Faulkner, 84 Tex. 187, 19 S. W. 480. And though all the officers at polling places are not freeholders as required by law, yet if they were appointed regularly, and acted fairly, and no wrong was done, the vote should not be rejected by reason of such irregularity: Collins v. Huff, 63 Ga. 207. The same court, however, in the later case of Walker v. Sanford, 78 Ga. 165, 1 S. E. 424, declared an election invalid where one of the officers lacked the requisite statutory qualifications. But it should be noted that this election was not held at the proper place, which was a controlling circumstance as well, and the statute appears to have been mandatory that to be valid an election must be held at

the proper time and place by persons qualified to hold them. Otherwise, the mere fact that an ineligible officer acted should not of itself be deemed a sufficient irregularity to avoid an election.

7. Candidate Acting as Officer.-The fact that a candidate acted as one of the election officers will not invalidate the entire election: Swepston v. Barton, 39 Ark. 549. Hence, where there are two lawful inspectors, the third being a candidate, the two may act without the third, and this state of facts will not render the proceedings, or the election, invalid: People v. McManus, 34 Barb. 620, 22 How. Pr. 25. And the fact that a candidate acted as an officer for a short time will not render the election void: Boileau's Case, 2 Pars. Eq. Cas. 503. Or even if he acts as an officer during the entire election: People v. Avery, 102 Mich. 572, 61 N. W. 4. And where the regular judges of election were illiterate, and could not read or write the English language, the fact that one of the candidates acted as clerk will not invalidate the election: State v. Bernier (Minn.), 38 N. W. 368. If one of the judges of election is a son in law of one of the candidates, the election of such candidate is not thereby rendered void: Hardin v. Colquitt, 63 Ga. 588.

There is some intimation in the cases that if one of the officers of election is himself a candidate for office, the election might be invalid as to him: Swepston v. Barton, 39 Ark. 549; People v. MeManus, 34 Barb. 620, 22 How. Pr. 25; Boileau's Case, 2 Pars. Eq. Cas. 503. His election would clearly be invalid if the statute so prescribed: See People v. Avery, 102 Mich. 572, 61 N. W. 4. But the tendency is clearly noticeable to hold that no irregularity in conduct. ing an election will invalidate it, if it is otherwise fairly and honestly conducted, and if the result would not have been different if proper and eligible election officers had acted. And this doctrine would appear to be applicable in the case of the election of a candidate who for some apparently valid reason has acted as one of the election officers.

b. Absence of Election Officers.-The temporary absence of one of the election officers from the polls a part of the day will not invalidate an election: Thompson v. Ewing, 1 Brewst. 67. So the fact that one officer left before the votes were all counted will not invalidate a return made by the other officers: Tanner v. Deen, 108 Ga. 95, 33 S. E. 832. The absence of a part of the officers during election hours will not invalidate an election: Major v. Barker, 99 Ky. 305, 35 S. W. 543. The absence of oue officer a short time from the polls, during which no vote was cast, does not vitiate the election: State v. Nicholson, 102 N. C. 465, 11 Am. St. Rep. 767, 9 S. E. 545. Neither is it vitiated if votes are received during such time: Pack wood v. Brownell, 121 Cal. 478, 53 Pac. 1079. The absence of some of the election officers during voting hours does not vitiate the elec tion, where no elector was hindered or prevented from voting by reason thereof: Anderson v. Likens, 104 Ky. 699, 47 S. W. 867. In the case of voluntary absence from the polls, it is the policy of the