dissented, by the following opinion:
The determination of the question, who is legally entitled to the certificate of election in this case, is a matter of secondary moment. However decided, the effect in this particular instance will be but transitory, and cannot extend beyond the existing term of the office about which the controversy arises. A majority of the court have decided the question in favor of the plaintiff in error. Although I differ from the majority in their reasoning and conclusions, from beginning to end, yet, if the .decision in its consequences ended with this case, I could be content to dissent in silence. But the doctrine now sought to be established, and armed with the authority of stare deeisis, extends in its consequences beyond this occasion into the future. The principles involved in this case are of vital importance to the well-being and peace of a community like ours. The genius of our institutions, and the tendency of the age, combine to make the polls the final arbiter of all questions involving a choice of public *132agents, or public policy. From this tribunal there is no appeal; and however repugnant to the feelings, or adverse to the interests of the minority, may be its decisions, they must yield it submission, or raise the arm of rebellion and anarchy.
Experience has shown that, in times of public excitement and desperate party strife, all manner of nefarious devices and expedients are frequently resorted to for the purpose of improperly affecting the result of the election. To preserve, then, unimpaired the authority and usefulness of the polls,, must be among the most important duties of the law-making power. Accordingly, we find that the legislature of the various States, as well as that of our own territory, have from time to time, as experience demonstrated their necessity, enacted laws intended and calculated to guard the purity and secure the correctness of the polls, by decreasing, as far as possible, the temptations and opportunities for fraud and mistake.
These laws are two-fold in their character—preventive and remedial. The remedial are such as provide a remedy or mode of proceeding, by which the result of the election, in any particular, may be scrutinized or contested, whenever it is conceived that it is vitiated by fraud or illegality; but by far the mpst important and useful of those regulations are the preventive. Without them, an election would be unworthy of the name, and degenerate from a law-appointed and law-regulated proceeding into a mere voluntary assemblage, where the right of the elector, the manner and evidence' of the exercise of that right, would be governed and protected by no more certain and just rule than the caprice of the hour, or the interested and uncertain passions of the greater number.
Upon this subject the Code of Oregon, after providing for the public notice of elections, the number and manner of selecting judges and clerks, substantially enacts, that the clerk of the county commissioners shall furnish one of the judges of the election with two poll-books, at least five days *133before the election ; that the judges and clerics of the election, before receiving any votes, shall be sworn to “studiously endeavor to prevent fraud, deceit and abuse in conducting the samethat the person administering such oaths shall cause an entry thereof to be made and subscribed by him, and prefixed to the poll-boolcs; that the elector shall in full view deliver his ballot to one of the judges of the election; that said judge shall, upon the receipt thereof, pronounce, with an audible voice, the name of the elector; and if the name be received, “ the clerics of the election shall enter the name of the elector and number in the poll-book.” After the polls are closed, the canvass shall be made by a comparison of the poll-lists, containing the names and numbers of the electors, until they shall be found or made to agree; that the ballots shall then be counted, unopened, except so far as to ascertain whether each ballot is single; that if the number of ballots shall exceed the number of votes on the poll-list, “one of the judges shall publicly draw out and destroy therefrom so many ballots unopened as shall be equal to such excess.” After this, the votes are to be counted, writing in the poll-book the name of each person voted for, and the number of votes he received; to which shall be attached a certificate of the judges and clerks, certifying the same to be correct. This constitutes the return. One of these poll-books, containing this return, is to be sent, under seal, to the clerk of the county commissioners; the other, with the ballot-box, to be deposited with one of the judges of election, “subject to the inspection of any elector, at any time thereafter, who may wish to examine the same.” In case of a contest for any county oifiee, after the proper preliminary proceedings, the same shall be tried by the District Court, or the judge thereof at chambers ; the court shall hear and determine (without the intervention of a jury) the same, in such manner as shall carry into effect the expressed will of a majority of the legal voters, as indicated by their votes, for such office, not regarding technicalities, or errors in spelling the name of any candidate for such office.
*134The only question for determination in this case is the legality of the election said to have been held in Cow Creek precinct. No other evidence exists of an election having been held there than is furnished by the certificate of certain persons professing to act as judges and clerks of the election at that place. This certificate asserts that, at an election held in that precinct, certain persons received a certain number of votes for certain offices; and, among others, that the plaintiff in error received for the office of sheriff twenty-three votes. Although not technically correct, it is substantially such a return as the law contemplates. It is the statement of the judges and clerks that an election was held, and their conclusions as to what was the result. But whether these persons, professing to be judges and clerks of election, have stated the facts in these particulars, does not appear, because no poll-book has been returned, nor is there any evidence that one was ever kept. The poll-book is the record of the election. In it, and it only, is to be found the oath of office of the judges and clerks, the names and number of the voters, the challenges made, whether allowed or disallowed, and all the other separate facts which transpire at and constitute an election. This statement, certificate or return, if made with authority, is drawn from thepoll-book, and the poll-book should accompany it; so that any errors of calculation that appear upon its face may be corrected by it; but in this case no poll-book exists, no list of the voters’ names was kept, no record of the oath of office appears, and there was nothing remaining, or, rather, ever existed, from which they could certify any thing. How, let me ask, did these judges and clerks ascertain that these supposed ballots, to which they have certified, agreed with the number of electors who voted at that election ? Certainly they did not ascertain it in the way in which the law requires, by comparing the number of such ballots with the number of voters upon the poll-books; for that was a physical impossibility, as no such thing as a poll-book existed. "What assurance had they, have we, or has the defendant in error, that while twenty-three ballots, might *135have been, found in the ballot-box for Day, they were not given by only ten electors, or any number less than twenty-three. In this case, as a matter of fact, no such fraud may have been practiced. It is not alleged by the defendant in error whether it was or was not; nor, as a matter of fact or law, can it be presumed that any one knows it.
But the law founded upon experience presumes that such devices will be practiced, and the defendant in error is entitled to have that security against such contingencies that the law has provided; that is, a comparison of the poll-list (kept name by name publicly, as the election progresses) with the ballots before the votes were counted. If a fraud has been practiced in this particular, (and if it was, the judges and clerks would not likely have been aware of it, for they had no means of detection,) the defendant in error would be almost powerless to detect and expose it. It could hot be done without an exact knowledge of the number of voters. How is that to be obtained, when no record was kept of them ? "Whose business is it to stand by and keep count, and remember it, and if it were any one’s, whose memory could be relied upon with any degree of certainty for such information ? especially in a precinct that would cast a thousand votes, an event not uncommon in densely populated neighborhoods. But to go further. Suppose it were true that twenty-three ballots were given at Cow Creek for the plaintiff in error, ten, or any number of them less than twenty-three, may have been given by persons not electors of the county.
The judges and clerks are not bound to know that every man who votes is qualified, nor is it possible that they can. But the law, founded upon experience, presumes that illegal votes may be thrown, and therefore it has provided that a poll-book be kept, the simple inspection of which will determine who did vote at a given election. The leading fact being known without doubt, a party who has been injured by illegal votes being cast against him, is enabled to show the fact. Besides, to vote illegally, knowing the same, is a criminal offence, and therefore it is important that a poll-book be kept. *136But, as in this case, if no poll-book were kept, how could the defendant in error, or any one else, ascertain whether illegal votes were thrown or not, and if so, how many and by whom.
The first step to be taken in the matter is to ascertain who did vote; this, by the security which the law has provided for him, the defendant is entitled to know from the poll-book; but by the decision of a majority of the court, it depends upon whether the judges of election see proper to keep a poll-book or not. If, through ignorance, negligence or corruption, they omit to keep a poll-book and return it, the burden of their ignorance or corruption must fall upon him. If they certify that A. B. had twenty-three votes, or one thousand, he must find out who gave them the best way he can; and if he cannot, as in most instances he could not, of course he is practically concluded from showing their illegality, although, in point of fact, one-half of them might have been so.
It is said, however, that the court is to disregard “ technicalities ” in the decision of this case; true, so the Code declares, but in the same sentence, by a particular expression, is defined in what sense the word technicalities is here used. The whole expression is, “not regarding technicalities or errors in spelling the name of any candidate for such office.” To my mind the inference is absurd, that because the law commands the court to disregard such “technicalities” as error in the spelling of a candidate’s name, that therefore the judges and clerks need not be sworn, that therefore there need be no list of the voters’ names, that therefore there need be no comparison of the poll-lists and the ballots before ■counting the votes; in short, that therefore all the security and guard which the law has thrown around the poll is merely so much parliamentary advice to the judges and clerks of election, which, whether they follow or not, shall make no sort of difference with the result.
Again, it is said that the court is to regard the will of the majority as indicated by their votes. The argument which •has been drawn from this partial statement of the law, if it proves any thing, proves too much. That will of the ma *137jority must not only exist, but it must be expressed, and that substantially in the mode designated by the law. If the elector were to vote viva voce, he would express his will, but not in such a mode as would authorize the court to consider it, because the law directs that his will shall be expressed by ballot. In this case, the record containing no evidence of what is known to the law as an election in Cow Creek precinct, then, although the majority of the voters of that precinct, if such an election had been held, would have willed the election of Day, there is no expressed will upon the subject. But it is said, the omission to keep a poll-book and return is the neglect of the judges and clerks, and the voters of that precinct should not be prejudiced by such neglect; that when the elector deposits his ballot he is entitled to have it received by the county canvassers, no difference what may occur by reason of the ignorance, negligence, or corruption of the officers who hold the election. This argument is liable to the objection that it assumes the fact in question, that is, that there were legal voters in Cow Creek precinct, and that they did deposit their ballots at an election therein for the plaintiff in error. Of all this there is no legal evidence in this record. No. parol evidence has been taken; the certificate of those persons professing to be judges and clerks is of no effect, because nothing appears from which they could certify such result, or any other. But if it were otherwise, the doctrine is erroneous, and is subversive of the true principles which lie at the foundation of the proceeding known as an election. All the regulations which the Code prescribes for holding elections are not merely directory to the officers. Some of them, I admit, are, and should be so held, but others are of the very essence and substance of the proceeding, without which it can have no effect. The rule which distinguishes between the statute that is directory and that that is not, though frequently difficult of application, is in itself simple and plain.
For instance: the Code directs that the clerk of the county commissioners shall furnish the judges of election with two *138poll-books, five days at least before the election. The object of this statute is to secure poll-books properly prepared for the records of the election. As the most convenient method of securing this end, the clerical officer of the county is directed to furnish them. But suppose he omit to do so, and the clerks of the election provide themselves with poll-books, and the election proceeds in all respects as if the statute had been obeyed by the auditor. This provision is directory, and a neglect to obey it by the auditor would not vitiate the election, provided the poll-books were obtained in some'way and used. The result, in all respects, would be the same. But a poll-book, containing a list of the electors, and their numbers, bears a very different relation to the main object to be accomplished, to wit, an election. Without something substantially conforming to it, there is no legal evidence that the event transpired, although there might be an assemblage of persons qualified to vote, and an individual expression of opinion upon some question to be decided at that election. If the poll-book can be dispensed with, then a collective expression of the will of the voters of the precinct may also be dispensed with, and each individual voter may send his vote by mail, or otherwise, direct to the county canvassers. The necessity of the poll-hook is not to be determined altogether with reference to the interests and rights of the supposed electors of Cow Creek precinct. The election is a public proceeding, in which the whole public have an interest, carried on at different places all over the territory at the same time. These twenty-three votes, purporting to have been thrown at Cow Creekfor Day, if counted, negative the expressed will of twenty-three legal voters in some other portion of Douglas County, say in Deer Creek precinct. Now, the twenty-three voters of Deer Creek precinct have a right to demand that, before the same number of voters shall be counted from Cow Creek precinct, negativing their legally expressed will, the legal evidence that an election was held at the latter place should exist and be produced.
It is said that although these provisions of the law are di*139rectory, and may be obeyed or not at pleasure, without affecting the result, yet there is sufficient security against fraud or mistake in the fact that the election is held openly and publicly, and that the judges and clerks, five in number, are sworn to “ studiously endeavor to prevent fraud, deceit and abuse in conducting the same.” By the same oath they are bound to conduct the election “ according to lawyet, according to the doctrine of the majority, this part of the oath is only directory, and whether kept or not will not vitiate the election. For the same reason so much of the oath as relates to “fraud, deceit and abuse” may be considered directory by the judges and clerks, and kept or not at pleasure. But this security against fraud and mistake, which is found in the publicity of the transaction, and the oaths of the officers, under the doctrine now established, is a mere mockery. The judges and clerks may omit to take the oath, the statute requiring them to be sworn being only directory. They may hold the election with closed doors, the statute requiring publicity is only directory. The voter is not to lose his rights upon account of these omissions, and so the election is left to the caprice of those who hold it. If illegal votes are received, quite likely no one remembers who gave them, no record has been kept of the voters’ names, and, until this becomes known, no steps can be taken to show their illegality, or even to ascertain the fact that they were illegal.
To be certain, then, of any security from fraud or mistake, or to have the means of its detection, if made, there must be some limit to what is directory, something must be imperative. In Eneas s’ Case, page 581, Parsons’ Select Equity Oases, Judge King says: “the manner of receiving and recording votes is also prescribed, and the procedure in this respect demanded by the law is most important to the prevention of fraud.” Again, he says of the same duty, “ this direction is among the vital provisions of the law, which no inspector, disposed faithfully to execute his duty, ought to omit, and the absence of which must tend to make the conduct of the election suspicious, if not absolutely illegal.”
*140For these reasons, I conclude that the law requiring the clerks to keep a list of the names and the number of electors, is not merely directory, but absolute and imperative. That it is of the very substance of the thing to be done as the election proceeds, forming a vital and substantial part of the proceeding. To hold otherwise, would open a wide door to fraud, controversy and dispute, that could only be settled by a resort to the uncertain and contradictory memory of judges, clerks and bystanders;—the very evil which this provision is intended to guard against. And if, in this particular instance, this instruction of the law would operate to exclude votes which were actually given in good faith, it is a misfortune which the parties must submit to for the time being. Mistakes are of daily occurrence in human affairs; and if the law were to be lengthened or shortened to meet each particular case, it would beget more confusion than it would correct.