People ex rel. Warner Lake v. Higgins

By the Court, Martin, J. The Court properly excluded evidence explanatory of the: intentions of persons voting for H. I. Higgins, and of the ‘identity of H. I. Higgins and Henry I. Higgins. This question was expressly decided in the People vs. Tisdale, (1 Doug. 59,) and to that decision we adhere. It is true in the People vs. Van Cleve, (Mann. 362.) Mundy, J., in delivering the opinion of the Court, says, “ you may go to the ballots, if not beyond them, in search of proof of the due election of either the person holding, or the person claiming the office.”’ But this remark was not called for in the case, and is obiter diobum. The Court also properly allowed the ballots of the townships of Genesee, Davidson and Fenton to be given in evidence. Whether there had been a substantial compliance with the statute in respect to the manner in which the votes were kept, it is immaterial to inquire, as we are clearly of opinion-that this statute must be held directory, and that a non-compliance with its provisions alone, cannot defeat the right of the relator. [Note. — This case was argued and submitted at the May term, 1853, and judgment of ouster, &e., rendered at July term against the defendant.]