error or omission in the return by reference to the duplicate statement on record, must be construed as mandatory, being within the well known rule which requires permissive words to be so construed when public rights are concerned. Such a statute imposes a duty to the public that must be performed.

4. Where the board of aldermen of a city act as the returning board to certify the result of an election in such city, the return must be made by a quorum of the board, but a quorum (or majority) of the board being present, a majority of that quorum may decide any question arising, and if the return is signed by the majority of a quorum it is sufficient. Bodies composed of a definite number of persons, act by the majority of those present, provided those present constitute a majority of the whole number. (5 Dane's Abridgment, 150. 1 Dillon Municipal Corp., Secs. 216 and 217.)

5. The law of Maine provides that returns shall be made, signed and sealed up in open town meeting. Where such returns are presented to the governor and council, and purport to have been made, signed and sealed up as this law requires, they constitute the basis of action by the canvassing board, and they have no power, in the absence of express authority, to receive evidence to negative the facts therein set forth. The statement of the election officers is, in this respect, conclusive upon the canvassing board.

6. Where in a return the name of one person is written out with the number of votes given him opposite to his name, and other names are written under his with little dots or marks placed under the

figures or words of the first candidate's vote, the returns should be counted where it appears by the letters or figures in the first line, and by ditto marks or by dots in the following lines, that the same class of candidates have received the same vote. There can be no ground for the rejection of the word ditto and its abbreviation "do," and dots or marks that stand for the word ditto, are in common use and have a perfectly well defined meaning known to persons generally and which should not be disregarded

7. The governor and council may inquire into a charge that the signatures of the officers, who sign a return are not genuine, or that the returns have been altered, but in considering any such charge, due notice should be given to the parties in interest, and all witnesses examined should be duly sworn. The genuineness of the returns in these particulars is to be presumed, and this presumption remains until overcome by evidence.

8. Where two lists of votes are returned from the same town, and materially differ from each other, the return first received must be the basis of the action of the canvassing board.

9. Upon the general subject of the spirit in which election laws should be interpreted and executed, the judges use the following strong but appropriate language:

"This government rests upon the great constitutional axiom that all power is inherent in the people. 'It is a government of the people, by the people, and for the people,' and, if administered in the spirit of its founders, 'it shall not perish from the earth.'

Its constitution was formed, to use the apt expression of one whose memory is embalmed in the hearts of his countrymen, 'by a plain people,' and a 'plain people' must administer it. The ballot is the pride as well as the protection of all. It is the truest indication of the popular will. The official returns required from the municipal officers of the several plantations, towns, and cities are and will be made by 'plain people,' and made, too, in the hurry and bustle, and excitement of an election. They are not required to be written with the scrupulous nicety of the writing-master or with the technical accuracy of a plea in abatement. A sentence may have been ungrammatical, the spelling may deviate from the recognized standard, but the returns are not brought to naught because the penmanship may be poor, the language ungrammatical, or the spelling erroneous. It is enough if the returns can be understood, and, if understood, the full effect should be given to their natural and obvious meaning. They are not to be strangled by idle technicalities, nor is their meaning to be distorted by carpings and captious criticisms. When that meaning is ascertained, there should be no hesitation in giving it full effect."

§ 555. In the recent case of People, ex rel, vs. Livingstone, (1880,) the court of appeals of New York held that when a ballot box and the ballots therein are offered in evidence, and there is proof that the box has not been kept, in all respects, as required by law, this is not of itself sufficient under the statute of that State to authorize the court to exclude the evidence from the consideration of the jury. In such a case the court, with some hesitation, con

cluded that it should be left to the jury to determine upon all the circumstances of the case, whether the ballots constitute more reliable evidence than the inspector's certificate. It was, however, in the same case, further held that the party offering such ballots in evidence must show affirmatively that they have not been tampered with, and that they are the identical ballots cast at the election in question: "Every consideration of public policy," says Church, Chief Justice, "as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are genuine." The burden of proof in such a case does not rest upon the party objecting to the ballots as evidence.

Whether the provisions of a statute providing for the preservation of ballots after an election, are mandatory or only directory, was one of the principal questions in this case, and is considered at considerable length with the result above indicated. So much depends upon the terms of the particular statute to be construed, that it is impossible to lay down a general rule applicable to all cases; but the better opinion seems to be that if the deviation from the statutory requirements relative to the manner of preserving the ballots, has been such as necessarily to expose them to the public or unauthorized persons, the court should exclude them, but if the deviations have been slight, or of such a character as not necessarily to render doubtful the identity of the ballots, the question of their identity may well go to the jury to be determined upon all the evidence. (See ante, Secs. 277, 278, 278a.)

CHAPTER XIV.

OF STATUTES REGULATING THE CONDUCT OF

ELECTIONS.

*

§ 556. Experience has shown that the careful revision and amendment of the statutes of most of the States regulating the conduct of elections, is a matter of the first importance. In the hope of directing the attention of legislators to this subject, of stimulating its consideration, and of securing the much needed action, this chapter has been prepared and is here inserted. The design of the author is not only to show the importance of the subject, but also to submit some practical and, he hopes, useful suggestions as to the character of the legislation required to secure and preserve that without which free government is impossible—the freedom and purity of the ballot.

§ 557. A government based upon popular suffrage can be successful in the best sense only to the extent that the popular voice is freely expressed, fairly and honestly ascertained, and fully obeyed. It is therefore of the greatest consequence that the purity and sanctity of the ballot should be guarded by the wisest and best legislation that statesmanship can devise. It is impossible to over-estimate the importance of this subject in a government such as ours, where the supreme power is vested only in the people, to be exercised by means of the ballot.

*This chapter is taken, in substance, from an article on "Our Election Laws," prepared by the author and published in “The North American Review" for May, 1879.