19 Ohio St. 25
Supreme Court of Ohio.
GEORGE FRY
v.
DANIEL BOOTH.
December Term, 1869.
**1 *25 MOTION for leave to file a petition in error, to reverse the judgment of the court of common pleas of Vinton county.
Section 5 of the act of May 3, 1852, ‘to regulate the election of State and county officers' (S. & C. 533), provides ‘That at all elections to be holden under this act, the polls shall be opened between the hours of six and ten in the morning, and closed at six in the afternoon of the same day.’
At the general election for State and county officers held in Vinton county, on the second Tuesday of October, 1868, in each of the townships of Clinton, Harrison, and Richland, the polls were opened by the officers of election in the morning between six and the o'clock, and finally closed by them in the evening at six o'clock; but at the hour of twelve o'clock at noon, the judges, after making proclamation to the voters present to that effect, adjourned the election, closed the polls, went away from the place of election to dinner, and after remaining absent about one hour, returned *26 to the place of election, reopened the polls, and kept them open during the residue of the day.
In Clinton township, two of the judges went together to dinner, and took and kept the ballot-box with them.
In Harrison township, two of the judges and one of the clerks took dinner together, and kept charge of the ballot-box
In Richland township, all of the judges and one of the clerks went to dinner together, and took and kept the ballot-box with them.
It appears that no fraud was practised, and no voter of either township was deprived of the right or opportunity to vote.
Fry and Booth were opposing candidates for the office of sheriff. If the votes cast at the elections in these three townships are counted, Booth was elected sheriff. If they are not counted, Fry was elected.
Clarke & Cooke and Homer C. Jones for the motion:
Fry claims that the adjournment of the election by the judges, during an hour at noon, for dinner or any other purpose, invalidated the elections in these townships, and required their rejection by the court below.
The provision of the statute requiring the polls to be kept open all day is not directory but imperative. 12 N. H. 284; Mayhew v. Davis, 4 McLean, 213; Torrey v. Millbury, 21 Pick. 64;Culver v. Hayden, 1 Verm. 359; Rex v. Foxdale, 1 Burrows, 445; Smith's Com. on Stat. and Const. Constr. 792, sec. 679; Thames Manuf. Co. v. Lathrop, 7 Conn. 550; Striker v. Kelly, 7 Hill, 29, Bronson, J., dissenting; McKane v. Weller, 11 Cal. 49; Register v. Bryan, 2 Hawks. 17; McDonough v. Gravier, 9 La. 546; Thurston v. Little, 3 Mass. 432; 4 Hill, 99; 3 Barb. 343; 20 Wend. 249.
The statute was not substantially or sufficiently complied with. The State of Ohio v. Rith, American Law Reg., Dec. 1867, p. 88.
*27 Alfred Yaple contra:
I submit that sec. 5, in relation to the opening and closing the polls, is directory only, and not mandatory or imperative; and that a substantial compliance with it, so as to secure a full and fair election, is all that is required of the officers holding and conducting the election; and that in this case the statute was thus substantially complied with, and that the adjournment for dinner under the circumstances of the case did not render the election void. Howard v. Shields, 16 Ohio St. 190–2; Scarff v. Foster, 15 Ohio St. 137, 144; Ang. & Ames on Corp. (3d ed.) p. 93; sec. 5, p. 94; People v. Martin, 1 Seld. 22; Broadhead v. City of Milwaukee, 19 Wis. 624; People v. Cook, 14 Barb. 259; 4 Seld. 67; Piatt v. People, 29 Ill. 54; Cooley's Const. Lim. pp. 617, 618, notes 1 and 2; Carpenter's Case, 2 Parson's (Pa.) Eq. Cas. 537, 544; Boileau's Cas., ib. 503.
Opinion
BY THE COURT:
**2 It was no doubt the intention of the legislature that the polls should remain open during the entire day of the election, between the hours specified in the statute for opening and closing; and good policy, as well as the convenience of the voters, would seem to require that this legislative intent should be observed. But we are not prepared to say that the closing of the polls for the hour spent at dinner, by the officers of the election, in these three townships, under the circumstances disclosed in this record, is, in law, sufficient to invalidate the elections and disfranchise the voters who did deposit their ballots in the boxes. The statute in this respect may be regarded as directory, and a departure from the strict observance of its provisions does not necessarily invalidate the election, where it appears that no fraud has been practised, and no substantial right violated. A case might occur that would require the entire vote of an election precinct to be set aside as invalid, but we are of opinion that this is not such a case.
Motion overruled.
All Citations
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