Kent says that no poll-book was sent by the judges of the election in Cow Creek precinct to the county auditor, as directed in section 28, and, therefore, the return from said precinct should be wholly rejected.
Assuming the premises to be true, the legal conclusion drawn therefrom does not follow. County canvassers are only required to decide who has received “ the highest number of votes,” for any office to be filled by an election of the people, and no poll-book is necessary to enable them to make that decision. Clerks and judges of election in each precinct of a county are compelled to send to the county auditor a certificate, to which the one from Cow Creek conforms in substance, and these certificates together constitute the evidence upon which the county board determine the result of the election for that county. Had the poll-book of Cow Creek precinct been returned with the certificate, as the statute contemplates, such poll-book would only have shown that A., B. and C. voted at the election, and not for whom *127they cast their votes, so that the county convassers, with the poll-book, could not have decided otherwise than they did without it. True, the clerks should have written out their certificate in the poll-book, but this error is not fatal to the return, for in point of fact it makes no difference whether the certificate is written on one piece of paper or another, provided it is written, and contains in substance what the law requires. When, therefore, the county convassers had all the evidence as to the choice of the electors in Cow Creek precinct, which a technical compliance with the law would have furnished, and their decision accords with that evidence, nothing in law or reason seems to demand a reversal of such decision, because some collateral and immaterial act was not correctly performed by a ministerial officer. Each clerk at an election is required to keep a poll-book, which is properly nothing more than a list of the voters’ names. One of these books is to be held by a judge of the election, for the examination and use of the electors; the other is to be sent to the county auditor, for the convenience, it is to be presumed, of the county officers. When no poll-book is filed with the county auditor, it is said no opportunity is afforded to contest the validity of the election by one who may feel aggrieved at the result of the canvass. This, if true, proves nothing to the point in this case. Judges and clerks may omit to show all about an election, and yet show that one has taken place, and how it terminated. Evidence for those wishing to contest an election, which is the poll-list, is one thing. Evidence for the county convassers, which is the certificate, is another and different thing. The non-existence of the one does not involve the non-existence of the other. Poll-books, however, are kept in all the precincts of the county, to accommodate those who wish to inspect or use them with reference to the election. Much of the argument for Kent proceeds upon the assumption that no lists of the voters’ names were kept at the election, but there is nothing in this case to support this' position. No such list, it seems, was returned to the county clerk, as the statute requires; but it is very illogical to argue *128that because a thing does not exist in a particular place, it does not exist, therefore, at all. Judges and clerks of elections will be presumed to discharge their sworn duties until the contrary appears. To keep a poll-book is a duty enjoined upon the clerks by law, and without any evidence to prove otherwise, courts will presume a compliance with that law. Admitting, however, that no poll-books were made by the clerks of the election in Cow Creek precinct, it does not then follow that there was no election in that precinct. No one pretends that there was any fraud or corruption in this matter, nor is it even pretended that Day did not get twenty-three legal votes at the Cow Creek polls, but the defect in the said return is supposed to be fatal to all the other facts and rights in the case. Statutes, prescribing the manner in which a public officer shall perform an act, are generally regarded as directory, and admitting the officer to have power, his disregard of such statutes, in doing the said act, will not destroy the rights of an innocent person. (4 Wheaton, 503-7; Iredell, 157-313; Monroe, 344-7; Blackford, 156.)
To sacrifice the end of an enterprise, when attained, for mistakes in the mode of precedufe, is to throw away the kernel and preserve the shell. Times and places for holding popular elections are appointed by law, to enable freemen to make choice of persons to fill the offices of the government.
"When, therefore, the qualified voters of an election district, at the time and place fixed by law, deliver their ballots to a legal depositary, the choice of the people of that district is made. Whoever has received a majority of the legal votes cast, is as much elected at the closing of the polls, as he possibly can be by means of that election. The choice of the voters has become a perfect fixed fact. To make proof of that fact is all that remains to be done. Counting the votes and making the returns are no part of the election, but the mere steps of the agents of those who have voted, to make known the result. Now, it must be evident that it is quite immaterial to the electors and the elected, whose rights are involved in the transaction, in what way the choice of the *129people is discovered, if the means used suffice to carry that choice into effect. The whole object of the election is then accomplished. For the sake of convenience, expedition and certainty, the law points out a mode for collecting the evidence, but a failure to follow that mode amounts to nothing, if the same effect is gained which an adherence to the mode would have produced, and the man receiving a majority of the votes gets the office. Truth, if recognised, is not to be rejected because it comes through an imperfect channel. Suppose the law had required a judge to save the ballots for evidence, instead of the poll-book, would their destruction, after they had been given and counted, invalidate the election ?
Suppose there had been no return whatever from Cow Creek precinct, but Day had received the certificate of election, and Kent had then contested, Day would be allowed to prove by parol that he had received twenty-three votes in said precinct which had not been counted for him, and thus sustain his right to the office, for his rights would not depend upon the acts or omissions of judges and clerks, but upon the votes of the people. Is Day worse off, with an imperfect return, than he would be with no return at all 2 Legal distinctions have been confounded in what has been said for Kent in this case, for it has been contended that the doctrine here laid down would make the choice of a person for office, by any loose assemblage of men, an election.
Voting implies something more than the mere expression of an elector’s will. "When a man votes he must express his will viva voce or by ballot, at a time and place fixed by law, and to a person having color of right to receive such expression, and these are all necessary and essential parts of the act of voting. To vote, an elector must do all that the law requires him to do in the performance of the act, and then he has voted, and nothing can afterwards be done by others to deprive him of the benefit and effect of that sovereign act. Judges and clerks may prove ignorant or corrupt, may return poll-books or not, as they please; but the just judgment of the *130law will give the elector his vote, when, its intent and effect are made to appear before the proper tribunal. Surely there is a broad difference between the perfect effective act of voting, and the mere attestation of a clerk to such an act. These views, it is said, open the door to fraud and corruption in elections. How this is to happen does not appear. Judges and clerks of election (five in number) are sworn “ to perform their duties according to law and the best of their abilities, and studiously endeavor to prevent fraud, deceit or abuse, in conducting the election” at which they act. All their proceedings are public, and it is next to impossible for the judges of an election to add to or take from the legal.votes of a precinct, without detection and exposure. Those guards which the law throws around the ballot-box cannot be knowingly disregarded by the officers of an election without the moral guilt of perjury. Mistakes will, however, sometimes occur, but there is no reason in allowing them to destroy all the right and good with which they happen to be connected. Citizens, when they vote, acquire a right to have their suffrages regarded, and the person to whom they are given acquires a right to have them estimated in his favor; and it would be unjust, not to say absurd, to hold that all these rights are destroyed by the mistakes of every petty officer who has to deal with the evidence of the election. To do this would be to sacrifice substance to form; to make the incident of a thing of more consequence than the thing itself. More evils, it is believed, will result in allowing clerical returns to control and decide elections, than in allowing the votes of the people to control and decide them. When a man seeks to put another out of office, and put himself in, by contest, as in this case, he must show that he has received a majority of the legal votes for such office; it is not enough for him to show that A., B. or C. has made some mistake about the returns, or that there is a chance of his being elected. The fact of his election must affirmatively appear. There is not a particle of evidence in this case to show that Kent had more legal votes for sheriff of Douglas County than Day; but all the evidence *131we have upon the subject proves the contrary, and that Day’s majority over Kent for said office was twenty-one votes. Our statute says, that courts shall determine such contests as this in a manner “ to carry into effect the expressed will of a majority of the legal voters, as indicated by their votes, not regarding technicalities or errors in spelling the name of any candidate for office.” Effect is to be given to the will of the majority, as expressed by their “ votes,” and not as it appears from the returns. Courts, in cases of this kind, are not bound by the acts or decisions of canvassing officers, but are to hear parol or other competent evidence, and then give the office to him who appears to have a majority of legal votes for it. This conclusion seems to harmonize with the theory of our government and the substantial requirements of the law. Let the judgment be reversed, and a certificate of election be issued to-day.
Judgment reversed.