seven ballots for city officers were found at the closing of the poll in the State box. The circumstances of the case made it, in the opinion of the Court reasonably certain that these ballots were in good faith put in by electors, and they were accordingly counted.

§ 133a. Inspectors of Election have no authority, on the assertion of one who claims to have voted by mistake in the wrong precinct, to withdraw from the ballot box and destroy a ballot which he identifies as the one or similar to the one he had voted. The officers of Election have no control over ballots once deposited, which will enable them to take any such action. And if they, under a mistaken idea of their authority, withdraw and destroy a ballot supposed to have been deposited by mistake, the person who claims to have voted such ballot, cannot vote at the same election at another place. (Harbaugh vs. Cicott, 83 Mich., 241.)

§ 134. It sometimes happens that the Officers of Election, though acting in good faith, commit errors which will vitiate the election. Thus, if they have adopted an erroneous rule in regard to the qualifications of voters, by which legal voters were excluded, or illegal voters admitted, in numbers sufficient to change or to render doubtful the result, the election is void, unless there is proof upon which the poll can be purged of illegal votes and the true result shown. And in such a case if the erroneous rule affects a class of voters, and it has become generally known to the persons who are excluded by it, they may submit to it, without waiving any rights, although they do not present themselves at the polls and offer their ballots. They have the right to take notice of the decision of the board in other cases precisely like their own. To require each voter belonging to a class of ex

cluded voters to go through the form of presenting his ballot, and having a separate ruling in each case, would be an idle and useless formality. We are to look at the substance, and not the formality.

§ 135. It must be conceded by all, that time and place are of the substance of every election, while many provisions which appertain to the manner of conducting an election, may be directory only. (Dickey vs. Hulburt, 5 Cal., 343.) It does not, however, follow that due notice of the time and place of holding an election, is always essential to its validity. Whether it is so or not depends upon the question whether the want of due notice has resulted in depriving any portion of the electors of their rights. In Indiana it was held that an election for County Auditor was not void by reason of an omission to give public notice that it would take place. (State vs. Jones, 19 Ind., 356.) See also People vs. Cowles, 13 N. Y., 350. People vs. Brenham, 3 Cal., 477. People vs. Hartwell, 12 Mich., 508.)

§ 136. In the case of Foster vs. Scarff, (15 Ohio State R., 532,) it was held, that where notice was not given, according to law, of an election to fill a vacancy in the office of probate judge, and where it was also apparent that the great body of the voters had in fact no notice, and were not aware that the office was to be filled, and where a small number cast their votes for a single candidate, and no votes were cast for any other, the election was void. But the court (Brinkerhoff, J.) says: "In deciding this case, however, we do not intend to go beyond the case before us as presented by its own peculiar facts. We do not intend to hold, nor are we of opinion, that the notice by proclamation, as described by law, is per se, and in all supposable cases, necessary to the va

lidity of an election; if such were the law, it would always be in the power of a ministerial officer by his malfeasance to prevent a legal election. We have no doubt that where an electien is held in other respects, as prescribed by law, and notice in fact is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. But where, as in this case, there was no notice, either by proclamation or in fact, and it is obvious that the great body of electors were misled for want of the official proclamation, its absence becomes such an irregularity as prevents an actual choice by the electors, prevents an actual election in the primary sense of that word, and renders invalid any semblance of an election which may have been attempted by a few, and which must operate, if it operate at all, as a surprise and fraud upon the rights of the many."

§ 137. It is, of course, more important and essential, that due and regular notice be given of an election to fill a vacancy, than that such notice be given of the regular election provided by law, for the obvious reason, that there is less probability that the electors will be informed of the former without such notification. Accordingly, we find in the decisions of the Courts some conflict as to the validity of a special election to fill a vacancy which is held without the notice provided by law. In People vs. Cowles (13 N. Y., 359,) it was held that in case of the death of a judge of the supreme court after it was too late to give the notice required for filling the vacancy at the next ensuing election, it was competent for the electors to take notice of the vacancy, and to fill it at that election.

§ 138. This case, however, was decided upon the ground that the Constitution of New York required that, in the event of a vacancy in the office of judge of the supreme court, it should be filled "at the next general election of judges

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by election for the residue of the unexpired term." And, under this provision, the majority of the Court seemed to be of the opinion that all electors were bound to take notice of a vacancy in that office without any formal notice, and that such voters as did so, had the right to fill such vacancy, although it occurred but a very short time prior to the election. Such may be the true construction of the Constitution of New York, but ordinarily, and in most, if not in all the other States, there must be either formal notice of the vacancy, and of the time of filling it, or such general notoriety as will amount to notice to the great body of the electors.

§ 139. In Michigan it was held that the default of a clerk in publishing notice of an election to make mention of an existing vacancy, will not invalidate the election, but the decision was put upon the ground that there was in fact such publicity as to amount to notice. (People vs. Hartwell, 12 Mich., 508.) And see State vs Orris, 20 Wis., 235. State vs Goetz, (22 Ibid, 363.) State vs. Jones, 19 Ind., 218. But in Indiana it has been held that an election to fill a vacancy cannot be held where such vacancy did not occur long enough before the election to enable the proper notice to be given. Beal vs. Ray, (17 Ind., 554.) And the same point has been repeatedly ruled in California. (People vs. Porter, 6 Cal., 26. People vs. Weller, 11 Ibid, 49. Feople vs. Martin, 12 Ibid. 409. People vs. Rosebo; ough, 14 Ibid, 180.)

§ 140. It appears that a statute requiring that the

polls shall be opened at sunrise, and kept open until the setting of the sun, is so far directory that before an election can be set aside, because of a deviation from the statute in this respect, it must be shown that legal votes were excluded, or illegal votes received in consequence thereof. [People vs. Cook, 8 N. Y., 67.] Whether the fact of closing the polls before the hour fixed by statute, or keeping them open after such hour, will of itself vitiate the election, must depend upon the terms of the statute. A slight deviation from the direction of the statute in this respect, will not render void the election, unless it is fraudulent, and operates to deprive legal voters of their rights, or unless the statute in express terms, makes the hour of opening and closing the polls of the essence of the election. See Cleland vs Porter, 74 Ill. 76.

The better opinion seems to be, however, that a considerable deviation from the hours fixed by law for keeping open the polls, must render the election void. Thus, in Pennsylvania, it has been determined that where the law required the polls to be kept open until ten o'clock, and they were closed at eight, the election must be set aside. (Penn. Dist. Election, 2 Parsons, 526.) So also if they be opened at a much later hour than the time prescribed by law. (Chadwick vs Melvin, Brightley's Election Cases, 251.) And it was at one time held in Ohio that if the polls were closed for any purpose within the hours fixed by law for holding the election, it would render it illegal and void. (State vs. Ritt, 16 Am. Law Reg., 88.) But this doctrine was overruled in Fry vs. Booth, (19 Ohio St. Rep. 25), where it was held that the statute requiring the polls to be kept open between the hours specified during the entire day, was so far directory that to close the polls during the dinner hour does not vitiate the election.