do in the ordinary way by reason of his ab
sence from home. A company used in the
technical sense here insisted on as an Integra
part of a regiment is required to consist of a
prescribed number of men, not less than six-
ty-four, nor more than eighty-two privates
with a specified number of commissioned and
non-commissioned officers, it is hardly to be
presumed that the convention, in framing
this section, bad in view any such precise or
professional idea of the word company; on
the contrary, I think they certainly used it in
its ordinary acceptation, as any civilian
would be most likely to do, and as signifying
any organized military association less than
a battalion or regiment; and if a detachment,
whether made up of a part of one or more
companies, technically so called, was, on the
day of election; in an organized condition,
acting under the command of a company of-
ficer, as was the case of all the detachments
whose votes have been received, I think it
came within the meaning of the term compa-
ny, as used in said section, and the voters belonging
to it were authorized to vote at the
quarters of its commanding officer.
Another objection is made to the vote of
these detachments, where they are stationed
within the State, upon the ground that by the
12th section of the same article in the constitu-
tion provision is made for their votes by allow-
ing them to vote at the nearest election polls.
My construction of that section is that it was
designed only for individual cases, inhospitals
or elsewhere on duty in the State, and did
not apply to organized companies stationed
within the State whose members were absent
from their usual place of residence. The
terms of the section expressly limit the privi-
lege therein given of voting at the near-
est polls (which I understand to mean the
nearest district polls) to those qualified voters
in the service and absent from home, who are
"not with their company;" and, if I am
right in the views previously presented, that
a detachment under command of an officer is
a company within the meaning of that term
as used in the constitution, then the proper
place of voting for that detachment is the
quarters of its commanding officer, and not
the nearest district polls.
Objections are made to the returns insome
three or four cases upon the ground of irreg-
ularity in showing, as in one case they do
that three non-commissioned officers acted as
judges, when only two could properly be elected
for that purpose, and again in another case
that only one acted; that in one case a com-
missioned officer was united with a non-com-
missioned officer as the judges, and in another
case with a private, and that these were im-
proper conjunctions and vitiated the election.
These may have been irregularities, but ac-
cording to the authorities on the subject they
were not, I think, of such a character as to
require a rejection of the vote; at all events, |
in the absence of anything going to show
that any one has lost his vote thereby, or vo-
ted when he was not entitled. If in any of
these cases complaints existed of frauds or
unfairness practiced at the polls where these
judges presided, the imputed irregularities of
the kind noted might be entitled to some
weight, but the leading principle in such
cases is, says Mr. Cushing, in his work on
Legislative Assemblies, " sanctioned both by
law and common sense, that where the pro-
visions of law, whatever they may be, are
imperative and peremptory, any neglect of
the returning officers to observe them will
render their proceedings void; but that where
the law is merely directory, no neglect or mis-
take, or even improper conduct or irregularity
on their part will be fatal, if in other respects
there has been a substantial or good election."
And again, he says, " that whether a neg-
lect of the requisitions of a directory statute
will be fatal or not to the proceedings, does
not depend so much upon the nature of the
neglect as upon its influence in producing the
result of the election."
it would certainly be very difficult to sug-
gest any reason for believing that the irregu-
larities herein referred to could have exerted
any influence upon the vote of the particular
companies in which they occurred. The same
author cites a variety of cases of irregularity
upon the part of the? returning judges of elec-
tion, apparently far more important than
those here suggested, which, however, were
held not to invalidate the election. In one
case the clerks of the election "were not
sworn till after the election " or "not sworn
at all; " in another, " the poll was not kept
open each day the number of hours required
by law ;" in another, the ballot-box, which
was required by law to belocked, " was only
tied with atape, and was also placed in the
custody of a person not authorized to have
charge of it."
In all these cases (says the author) there
being a substantial and good election, not-
withstanding the irregularities complained
of the proceedings were not invalidated.—
(Gushing on Legislative Assemblies, 74-5.)
Other objections have been taken to the suf-
ficiency of these returns upon the ground
that where the commissioned officers do not
act as judges, it should appear affirmatively
upon the face of the returns that they were
not present, and that the voters present elec-
ted others in their places, who must also be
certified to be qualified voters, and therefore
various returns are said to be defective, be-
cause in different cases without making these
sergeants the returns commence by saying,
"We, the sergeants of company A;" or, "we,
the judges of company B;" or, "we, the law-
fully appointed judges of company F;" or,
"we, being two voters of company G;" or,
" we, enlisted members of company B," &c.,
&c.; but in every one of these cases the cer- |
