§ 141. Where the polls were kept open after the proper hour for closing, and it appeared that enough votes had been cast after the legal hour for closing the polls to have changed the result, the election was set aside, (Locust Ward Election, 4 Penn. Law Journal, 341.) In Illinois it has been held, under similar circumstances, that it must be shown affirmatively that votes were received after the proper hour, which did change the result, (Piatt vs. People 29 Ill., 54.)

§ 142. From all the somewhat conflicting authorities upon the subject, the following may be gathered as the governing rules:

1. If the Statute fixing the hours during which the polls shall remain open expressly declares that a failure in this respect shall render the election void, it must be strictly enforced.

2. But in the absence of such a provision in the Statute, it will be regarded as so far directory only, as that, unless the deviation from the legal hours has affected the result, it will be disregarded.

3. If the deviation from the legal hours is great, or even considerable, the presumption will be that it has affected the result, and the burthen will be upon him who seeks to uphold the election, to show affirmatively that it has not. But if the deviation from the legal hours is but slight, the presumption will be that it has not affected the result, and the burthen will be upon him who attacks the validity of the election, to show affirmatively the contrary.

4. If the number of votes illegally cast after the legal hours, and the persons for whom cast can be shown, they may be rejected from the count.

§ 143. A question of great importance arose in the Twenty-Eighth Congress, as to the constitutionality of the second section of "an act for the apportionment of Representatives among the several States, according to the sixth census," approved June 25th, 1842. That section provided as follows:

"That in each case where a State is entitled to more than one Representative, the number to which such State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory," &c. The laws in force in many of the States, prior to the passage of this act, provided for the election of Representatives upon a general ticket, to be voted for by the people of the State at large, and the States of New Hampshire, Georgia, Mississippi and Missouri, refused to change their system in obedience to the act of Congress, and elected their Representatives to the Twenty-Eighth Congress in the old way, by a general ticket. The question was as to the power of Congress to abrogate a State law, providing for an election of Representative upon a general ticket, and to require the State to divide its territory into districts, and to choose Representatives by districts. And the decision of this question depended upon the construction of the fourth section of the first article of the Constitution of the United States, which is in these words:

"The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof, but the Congress may, at any time, by law, make or

alter such regulations, except as to the places of choosing Senators."

The majority of the committee of Elections held the second section of the apportionment act, above quoted, to be unconstitutional and void, and this view was ably supported in an elaborate report submitted by Hon. Stephen A. Douglass, of Illinois. (1 Bartlett, 47 to 55.) But the contrary view was maintained with scarcely less ability, and in the opinion of the writer of this treatise, with better logic, by the minority of the committee, whose views were presented by Hon. Garrett Davis of Kentucky. (Ibid, 55 to 69.) The house did not pass upon the resolutions submitted by the committee, but the members who had been elected in disregard of the act of Congress, upon a general ticket, were allowed to serve out their time. It seems quite clear that the Constitution confers upon Congress power:

1. To make regulations concerning the time, place and manner of holding elections for Representatives. This power can be exercised, and was doubtless intended to be exercised, in the absence of any regulations by the State legislature, but the language of the Constitution does not permit us to say that it can only be exercised in the absence of State regulations.

2. To alter such regulations as may have been prescribed by the States concerning the time place and manner of holding such elections. This power is legitimately exercised when a regulation requiring representatives to be chosen by the people of a State at large, is so altered as to require that such representatives be chosen by districts.

§ 144. The House of Representatives, however, in the more recent case of Phelps and Cavanaugh of Minnesota, (1 Bartlett 148,) followed the ruling of the majority of the committee in the case last cited, and held that the election of the members by the State at large in disregard of the Act of Congress was valid. The weight of authority, so far as the action of the House is concerned, is therefore in favor of this view, and yet it is manifest that these rulings have been influenced largely by the consideration that to have decided the other way would have left States for the time being unrepresented.

145. In the case of Brockenbrough vs. Cabell, (1 Bartlett, 79,) it was held that where the State law required votes given for a Representative in Congress to be returned to the Secretary of State within thirty days from the day of the election, the Statute was directory only, and that legal votes returned by the proper officers after that day should be counted. The substance of this ruling has since been followed in many cases presenting kindred questions, and the point is well settled. (Case of John Richards, Cl.& H. 96. Spaulding vs. Mead, Cl & H. 157.) And in the case last cited it was distinctly held that, inasmuch as the house is made, by the Constitution, the exclusive judge of the elections and returns, as well as of the qualifications of its own members, the returns from the State authorities must be regarded as prima facie evidence only of what they contain, and are not conclusive on the house.

And in Mallery vs. Merrill, (Ibid 328,) it was held that votes fairly given to a party may be counted in his favor, though they have never been returned to the

proper State authorities, the failure to make such return not being chargeable upon such party.

§ 146. A statute of New York provided that it should not be lawful for any person "to contribute money for any purpose intended to promote the election of any particular person or ticket, except for defraying the expenses of printing, and the circulation of votes, hand bills and other papers, previous to any such election." Under this statute it was held in Jackson vs. Walker, (5 Hill, 27,) that a contract to pay the plaintiff $1000, for erecting and keeping open a building known as a log cabin for the use of the Whig party during the campaign of 1840, and for the use and benefit of the candidates of that party, was void. The court held that it was not necessary to show fraud, as the statute clearly forbade the contract, by declaring that with two specified exceptions money intended to promote an election shall not be contributed.

§ 147. In Hurley vs. Van Wagner, however, (28 Barbour, 109,) it was held, under same statute, that an action will lie to recover compensation for services rendered to another, under a contract, in putting up and taking down a tent, used by the employer as a place for holding public meetings of the friends of a particular candidate for the presidency, during a canvass preceding a presidential election. And in this latter case the Court expressed the opinion that the ruling in Jackson vs. Walker, went too far and could not be reconciled with the spirit or the letter of the statute, of which it is an exposition. The true rule, independent of any statute, doubtless, is, that all contracts entered into for the purpose of