a means of giving expression to the popular will and should be so conducted that it will come as near to doing this as possible.

18. Canvassing of votes.-When the votes are all cast there remains the task of counting them, nor is this a mere mechanical task, for the ballots are not like so many apples, each necessarily amounting to one in the count. But as the validity of each ballot must be passed upon in order to determine whether or not it should be counted, the work of a board of canvassers becomes a quasi-judicial function. Their finding is prima facie evidence of the title to office of the one whom they declare to be elected. But it is only prima facie evidence and to hold it conclusive would be putting a dangerous power into the hands of a board which is not infrequently so made up that it can be swayed by partisan considerations. The will of the voters ought not to be subjected to the danger of being defeated by the findings of such a board. Their findings are less likely to be partisan if their decision is subject to review. In the last analysis the court may go behind the decision of the board of canvassers to the ballots themselves and may even go behind the ballots to the voter if necessary to do so in order to find out what the ballot really means.3 In the case of the People v. Vail39 the court said: "The decision of the canvassers was conclusive in every form in which the question arises, except that of a direct proceeding by quo warranto, to try the right. But, to hold it conclusive in this proceeding

38 People ex rel. Yates v. Ferguson, 8 Cow. 102 (N. Y.). 39 20 Wend. 12 (N. Y.).

would be nothing less than saying that the will of the electors plainly expressed in the forms prescribed by law may be utterly defeated by the negligence, mistake, or fraud of those who are appointed to register the results of an election."

19. How to compel canvassing board to act.-The work of a canvassing board, though in a sense judicial, is not altogether so. Though the decision of a dispute one way rather than another is a discretionary act, whether or not it will decide at all is not discretionary. Their duty to act is a ministerial duty and may be compelled by mandamus. Not only is this true in the first instance, but if a recount is deemed necessary by the court, under these circumstances the canvassing board may be compelled by mandamus to act. As said by Justice Brewer in Lewis v. Commissioners:40 "It is settled by abundant authority that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns as he has of any part, and may be prejudiced as much by a partial as by a total failure. The adjournment of the board does not deprive the court of the power to compel it to act, any more than the adjournment of the term of a district court would prevent this court from compelling by mandamus the signing of a bill of exceptions by the judge of that

40 16 Kan. 102.

court, which has been tendered to him before the adjournment."

20. What constitutes an election.-In order that an election may be binding, i. e., may have legal effect, it must be called in accordance with law by the proper authority to call such an election and it must be conducted in accordance with law by the proper officers. As these matters are regulated by statute this is another way of saying that elections, in order to be regular and legal, must conform to statutory requirements. Of course, if the people see fit to take this power from the legislature they may do so by inserting provisions in the state constitution similar to provisions in the Federal Constitution which govern in the election of President and VicePresident of the United States.

Whether or not there has been a sufficiently substantial compliance with the law to constitute a bona fide election, as well as what is the actual result of an election, must ultimately be settled by the court. Most commonly a plurality rather than a majority of the votes cast is sufficient to decide an election, unless there is a provision to the contrary. Where there are several running for the same office this would mean that a candidate may be elected who has received but a minority of all the votes cast at that election, for the office for which he was a candidate. It may even happen that where there are but two candidates for the same office one may be elected who has received neither a majority or a plurality of the ballots which were cast for candidates for that office. This is admitted by the court in the case of

People ex rel. Furman v. Clute. In this case Furman received but a minority of the votes cast, but Clute, who received a majority, was ineligible to the office by reason of his holding another office. But there was not sufficient proof that the voters knew that he held the other office, so that they could not be said to be intentionally throwing their votes away by casting them for one whom they knew to be ineligible. Under these circumstances the court considered that there had been no election. The rule governing such cases is thus stated by the court: "The existence of the fact which disqualifies, and of the law which makes the fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home as to imply a willfulness in acting, when the action is in opposition to the natural impulse to save the vote and make it effectual. He must act so in defiance of both law and fact, and so in opposition to his own better knowledge that he has no right to complain of the loss of his franchise, the exercise of which he has wantonly misapplied."

21. Advantages and disadvantages of elections.— Though a popular election is a slow, cumbersome and expensive method of choosing public officers, it has certain decided advantages. It is educative and gives the common people a share in government which they could not exercise effectively in any other way. As a rule the sense of responsibility which a public of

41 50 N. Y. 451, LEADING ILLUSTRATIVE CASES.

ficer feels toward the people is greater where he owes his official position to them, and this sense is keener where he owes it directly rather than indirectly. It is a recognition of this fact that has brought about a change in the method of electing United States senators. Here the urgency and determination were so great that it was practically effected in many states without waiting for a change in legal forms.

The degree of advantage resulting from popular election depends measurably upon the character of office to be filled as well as upon the degree of knowledge which the average voter has of what may be reasonably expected of the officer. It must be admitted that with reference to certain classes of officers this method of selection has its limitations. While most agree that legislators should be chosen by election rather than by appointment, with regard to judges there is room for honest difference of opinion, and as regards experts such as engineers or chemists, about whose duties or qualifications the average voter cannot be expected to have much knowledge, it is pretty generally agreed that appointment is the preferable method of selection. It may be that in this country the method of choosing officers by popular election has been extended somewhat beyond its natural limits, but with reference to this as with reference to all matters of government, the final test is its practical working. If it works well, its conformity or lack of conformity to theory is not a vital matter. Results are the touchstone for testing governmental machinery. If experiment shows that