* * *

fects of fraud and intimidation; and the construction given the act should, if possible, be in harmony with its beneficent object. A cardinal rule for the construction of statutes is that, in case of ambiguity in an act, the courts will adopt that construction best adapted to promote the general object, and most conformable to reason and justice. See Sedg. St. Const. Law, 196. We must not, however, be understood as holding the provision of the ballot law under consideration to be mandatory. Generally speaking, provisions which are not essential to a fair election will be held to be directory merely, unless the contrary clearly appears from the act itself. State v. Russell, 34 Neb. 116, 51 N. W. 465, and authorities cited."

State v. Saxon, 30 Fla. 668, 12 South. 218: "Statutes tending to limit a citizen in the exercise of the right to vote should be liberally construed in his favor, and exceptions which exclude a ballot should be restricted, rather than extended, so as to admit the ballot if the spirit and intention of the law is not violated, although a liberal construction would violate it. The result, as shown by the ballots deposited by legal electors, must not be set aside, except for causes plainly within the purview of the statute." "The object intended to be effected was the independence of the voter, and this was sought to be secured by prescribing to a certain extent the form of the ballot, and excluding from it whatever was within the prohibition of the provision, and thereby securing the secrecy of the ballot; inviolable secrecy as to the person for whom an elector may vote being the material guaranty of the constitutional mandate that voting at popular elections shall be by ballot. State v. Anderson, 26 Fla. 240, 259, 8 South. 1. The nearer the lawful approach to a perfect uniformity of ballots, the more perfectly is the secrecy of the ballot, and consequently the independence of the voter, secured. The greater the uniformity, the less the possibility of distinguishing marks. It is, however, not to be lost sight of, that a ballot will never be vitiated by anything which is not clearly within the prohibiting words and meaning of the statute. The elector should not be deprived of his vote through mere inference, but only upon the clear expression of the law."

Boyd v. Mills, 53 Kan. 594, 37 Pac. 16: "The departure from the law in matters which the legislature has not declared of vital importance must be substantial in order to vitiate the ballots. This appears to be the general current of all the authorities. In Bowers v. Smith, 111 Mo. 61, 20 S. W. 101, it is said: 'If the law itself declares a specified irregularity to be fatal, the courts will follow that command, irrespective of their views of the importance of the requirement. In the absence of such declarations, the judiciary endeavor, as best they may, to discern whether the deviation from the pre

scribed forms of law had or had not so vital an influence as to prevent a full and free expression of the popular will.'"

Returning again to Price v. Lush, we observe that the doctrine was there invoked that, by the adoption of a statute of a foreign country, the subject of which was new to this jurisdiction, we impliedly adopted the construction given to such statute by the courts of such foreign country, provided our own statute, as enacted, was silent as to the matter of construction. Eminent authority was cited in support of that doctrine, as remarked in State v. Barber (Wyo.) 32 Pac. 14. That this general doctrine should obtain we have no doubt. It has often been declared by this court. Lindley v. Davis, 6 Mont. 453, 13 Pac. 118; Territory v. Stears. 12 Mont. 330; First Nat. Bank v. Bell S. & C. Min. Co., 8 Mont. 32, 19 Pac. 403.

But we think that in Price v. Lush the doctrine should have been taken with a modification, which escaped the attention of the court. The Australian ballot law was adopted from a monarchical government,-a limited monarchy, perhaps, but still of the nature of a monarchy. The law was brought from such a government to a republic. In the former the tendency is to limit and restrict the electoral franchise. In the latter the tendency is to extend the same. The particular form of ballot law known as the "Australian System" was new to our jurisdiction. But construction of election laws generally was not with us a new field of law; and, in the construction of election laws, the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors. As said by Chief Justice Groesbeck, in State v. Barber (Wyo.) 32 Pac. 28: "Although our statute is a very faithful copy of the Australian ballot law, I see no reason for adopting the construction of the British courts, which appears to be most rigid. I do not see why this law should be more strictly construed than any other statute, or why different rules of construction from those invariably followed by the courts should be adopted in construing the statute." See, also, cases above cited, and cases cited in the brief of counsel for Hallahan.

We are of opinion that an election law imported from a monarchy to a republic should therefore not be subjected strictly to the rule that the importation of a statute imports also its construction. In this respect, and for the reason suggested, we are of opinion that Price v. Lush extended the rule to an application not warranted by our history, our institutions, and the former decisions of American courts upon the construction of election laws. These views lead us to the opinion that the provisions of our Australian ballot law should not be construed as strictly mandatory, when the question of their observance or disobedience is raised under the facts and circum

stances found in the case at bar. Price v. Lush, however, is distinguishable from the case at bar in this respect, as remarked above in this opinion, that that case was decided upon the pleadings, and nearly the whole ballot system appeared to have been disregarded. It did not in that case appear that facts omitted to be stated in the certificate were absolutely existent; but in the case before us the defects in the certificate of nomination were simply omissions to state facts not particularly substantial, when, indeed, the facts so omitted to be stated did exist, and were so found by the court on the trial. That was not the case in Price v. Lush.

As to whether the provisions, here under consideration, of the Australian Ballot Law, as to certifying a nomination, are to be considered directory or mandatory, we are of opinion that the correct view is this: That while courts may have held that such provisions are mandatory, when the question was directly raised in some proceeding demanding that such provision should be complied with, or in some proceeding asking that an officer be required to file a certificate which was defective, and he made such defect a defense for his refusal, yet they should not be held to be mandatory in a case like the one at bar, where the nomination has been duly made, a certificate filed, the name placed upon the ballot, the candidate voted for and elected by a plurality of all the legal votes cast, and the effect of giving a mandatory construction of the provision under consideration is absolutely to disenfranchise a. plurality of the voters of the district, when no question is made that their will has not been fully, fairly, and honestly expressed at the polls. State v. Barber (Wyo.) 32 Pac. 28; Lucas v. Ringsrud (S. D.) 53 N. W. 426; State v. Saxon (Fla.) 12 South. 218.

In this connection section 13 of article 11 of the constitution is pertinent: "In all elections held by the people under this constitution, the person who shall receive the highest number of legal votes shall be declared elected." To hold such provisions of a law mandatory is not within the rules as to mandatory and directory construction of statutes. We said in Bank v. Neill, 13 Mont. 382, 34 Pac. 180: "As to whether language should be construed as mandatory or directory, the doctrine is well stated in Wheeler v. City of Chicago, 24 Ill. 105, as follows: "The word "may" is construed to mean "shall" whenever the rights of the public or third persons depend upon the exercise of the power or performance of the duty to which it refers. And so, on the other hand, the word "shall" may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or the individual, by giving it that construction. But, if any right to any one depends upon giving the word an imperative construction, the presumption is that the word was used

But,

in reference to such right or benefit. where no right or benefit to any one depends upon the imperative use of the word, it may be held to be directory merely.' So in the case at bar. The moving party's right to his compensation given by statute for the trouble and expense of his motion depends upon giving the word 'shall' an imperative construction, and, as remarked in the Illinois case, 'the presumption is that the word was used in reference to such right or benefit.' See, also, Blake v. Railroad Co., 39 N. H. 435; Ex parte Jordan, 94 U. S. 251; Sedg. St. & Const. Law, 316-325."

We note the following from Endlich on Interpretation of Statutes: "When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of noncompliance, the question often arises, what intention is to be attributed by inference to the legislature? Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention." Section 431. "It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience (and that, where an act requires a thing to be done in a particular manner, that manner alone must be adopted). But the question is in the main governed by considerations of convenience and justice, and when nullification would involve general inconvenience (or great public mischief) or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature." Section 433. "On the other hand, the prescriptions of a statute (often) relate to the performance of a public duty; and to affect with invalidity acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those intrusted with the duty, without promoting the essential aims of the legislature. In such case, they are said not to be of the essence or the substance of the thing required, and, depending upon this quality of not being of the essence or substance of the thing required, compliance being rather a matter of convenience, and the direction being given with a view simply to proper, orderly, and prompt conduct of business, they seem to be understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an act ordered a thing to be done by a public body or public officers, and pointed out the specific time when it was to be done, that the act was directory only, and

might be complied with after the prescribed time. Such is, indeed, the general rule, unless the time specified is of the essence of the thing, or the statute shows that it was intended as a limitation of power, authority, or right." Section 436. "In general, statutes directing the mode of proceeding by public officers are deemed advisory, and strict compliance with their detailed provisions is not indispensable to the validity of the proceedings themselves, unless a contrary intention can be gathered from the statute, construed in the light of other rules of interpretation." Section 437.

Under these views of directory and mandatory statutes, we cannot hold that the matters omitted from Hallahan's certificate were mandatory, when the question is raised as it is in this case. The statute does not declare that noncompliance with these matters shall nullify the election. End. Interp. St. § 431; Boyd v. Mills (Kan.) 37 Pac. 18; Keller v. Toulme (Miss.) 7 South. 508; People v. Board of Canvassers (N. Y.) 29 N. E. 327. The wholeaim and object of the legislature are not defeated by such noncompliance. End. Interp. St. § 431. If the election is to be nullified, it would, as observed in Endlich, involve general inconvenience and great public mischief and injustice to innocent persons, without promoting the real aim and object of the legislature. End. Interp. St. § 433. We cannot believe that such was the intention of the act. Referring again to the case of Bank v. Neill, quoted above, we have to observe in the -case at bar that the right of no one depends upon giving these provisions of the statute a mandatory construction. No right is preserved by such construction, but, on the other hand, a right would be destroyed; that is, the right of the person having the highest number of legal votes cast to be declared elected. Const. art. 9, § 13. But, by giving these provisions a directory construction, this same right is preserved. Surely, such construction should prevail in this case. Such are our views as to this important matter. It was claimed in the argument that our decision in State v. Benton, 13 Mont. 306, 34 Pac. 301, looked in the direction of the views now expressed. If it did, we are satisfied that it looked in the right direction. We said in that case: "The decision in this case is placed solely upon the ground discussed herein before, and all other questions are reserved." So, in this case at bar, we limit our remarks to the facts of the case, in this, namely, that when such defects in a nominating certificate as existed in the one which we have considered are brought before a court in a proceeding such as the one at bar, and with the facts as they are found here, we are of opinion that the said described requirements of the Australian ballot law, as to certifying nominations, must be held to be directory only. Any other construction of these provisions of the Australian ballot law would convert a great reform measure into a trap and a snare for the

The

innocent and the honest, and would subject the will of the people in elections to the accidents of inadvertence and the tricks of the disingenuous. While the statute would seek to cast out one evil spirit, it would take into the political house thus swept and garnished seven other more dangerous spirits, and the last condition of the state would be worse than the first. Gospel of Luke, c. xii. 24, 26. There need be no new trial in this case. findings are all made, and are not attacked. They are sufficient upon which to enter judgment. Woolman v. Garringer, 2 Mont. 405; Collier v. Ervin, Id. 557; Barkley v. Tieleke, Id. 435. It is ordered that the judgment of the district court be reversed, and that the case be remanded, with instructions to dismiss the contest, and adjudge that D. F. Hallahan is the duly-elected treasurer of Deer Lodge county. Remittitur forthwith.

PEMBERTON, C. J., concurs.

HUNT, J. (concurring). I concur in the conclusion and the reasoning of the learned opinion of Justice DE WITT. But I regard the decision of the court as a reversal, rather than a modification, of the case of Price v. Lush, and, so regarding it, I willingly concur.

I have never believed that the doctrine in the case of Price v. Lush could be sustained. In my judgment, it is contrary to the intent of the law itself, as well as the spirit of our government, and to the letter of the constitution of the state, providing that "in all elections held by the people under this constitution, the person or persons who shall receive the highest number of legal votes, shall be declared elected." Article 9, § 13. Whatever may be the proper construction to be put upon the provisions of the Australian ballot law, where the regularity of the nominating certificate is questioned before election, I think that after the election is over, and no questions of fraud or illegality of the returns, or other questions of that nature, are raised, the constitution is mandatory, and that the person who receives the highest number of votes must be declared to be elected.

(27 Or. 328) FLECKENSTEIN et al. v. INMAN, POUL, SEN & CO. (Supreme Court of Oregon. April 29, 1895.) ASSIGNMENT OF CLAIM-OWNERSHIP BY ASSIGNOB -APPROPRIATION OF LOGS-LIABILITY OF APPROPRIATOR.

1. In an action for the price of logs sold to defendant by one M., who assigned the claim to plaintiffs, it was not error to refuse an instruction that plaintiffs could not recover if the logs did not belong to M. at the time of the assignment, there being evider ce that at the time of such assignment M. was acting as agent for the own er, who subsequently ratified his act.

2. Where logs which had been placed in de fendant's rafts contrary to orders were taken to its mill, and sawed into lumber, defendant's liability for the value thereof attached when it first took possession of the logs, and not when they were actually used at the mill.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Fleckenstein & Mayer against Inman, Poulsen & Co. to recover the value of saw logs. From a judgment for plaintiffs, defendant appeals. Affirmed.

Raleigh Scott, for appellant. Joseph Simon, for respondents.

BEAN, C. J. This is an action to recover for certain saw logs alleged to have been sold and delivered by Matti Makarainen to the defendant between November 29, 1892, and the 21st day of February, 1893. The complaint avers that between the dates mentioned Makarainen sold and delivered to the defendant, at its special instance and request, 610 saw logs, containing 369,769 feet, of the reasonable value and agreed price of $4 per 1,000, and 535 saw logs, containing 637,494 feet, of the reasonable value and agreed price of $5 per 1,000, amounting in the aggregate to the sum of $4,666.54, no part of which has been paid; that on February 21, 1893, Makarainen, for value, duly sold and assigned his claim and demand against the defendant to the plaintiffs, who ever since have been, and now are, the owners and holders thereof. The answer of the defendant denies that Makarainen sold and delivered to it the saw logs mentioned in the complaint, or that it received any logs belonging to him, except as therein alleged; avers that it has no knowledge or information sufficient to form a belief as to whether Makarainen sold and assigned his claim or demand against it to the plaintiffs in February, 1893, or at any other time; and alleges that at the date mentioned Makarainen had no claim or demand against it for any sum of money, except as thereinafter alleged. And as a further and separate defense alleges: "That prior to the 29th day of November, 1892, the said Matti Makarainen offered to sell saw logs to the defendant, but the defendant refused to purchase any saw logs whatever from said Matti Makarainen, and has ever since so refused; that, notwithstanding this refusal to purchase any saw logs from said Matti Makarainen, certain saw logs belonging to the said Makarainen were placed in defendant's rafts by the agents of the said Makarainen, without the knowledge or consent of the defendant, and contrary to its direct orders; that said logs of the said Makarainen were brought to the mill of the defendant, in the city of Portland, Oregon, in their said rafts, and were there converted into lumber; that all of the saw logs belonging to the said Matti Makarainen, and converted into lumber by the defendant, as above alleged, prior to the 21st day of February, 1839, contained 614,305 feet; that the reasonable value of said logs was the sum of three dollars per thousand feet, or in all the sum of $1,842.91; that prior to the 21st day of February, 1893, the defendant had paid to the said Matti Makarainen, for

and on account of the said logs, the sum of $1,820.74, leaving a balance due the said Makarainen on said 21st day of February, 1893, the sum of $22.17, which said sum defendant herewith brings into this court, and tender the plaintiffs; that since the 21st day of February, 1893, saw logs belonging to the said Matti Makarainen, containing 275,516 feet, have been placed in the rafts of this defendant by the agents of the said Makarainen without defendant's knowledge or consent, and contrary to its direct orders, as herein before alleged, and converted into lumber by the defendant; that the said 275,516 feet of saw logs were of the reasonable value of three dollars per thousand feet, amounting to $826.53; that defendant has paid for boomage of said logs the sum of $153.53, leaving a balance due for said logs in the sum of $673." At the trial Makarainen testified in rebuttal that during the month of September, 1892, he sold, assigned, and transferred all his right, title, and interest in and to the logs which were afterwards received by the defendant to his brother, Maketa, for the sum of $500; that he had no further interest therein after that date; and that when he made the assignment, in February, 1893, to the plaintiffs, he was acting under a power of attorney for his brother, who subsequently ratified his acts. He also testified that he sold and caused to be delivered to defendant the logs mentioned in the complaint; that he demanded payment therefor, and that all the dealings in relation to the sale and delivery of such logs were had by defendant with him. At the proper time the defendant requested the court to instruct the jury (1) that, if Makarainen "had sold out to his brother before the assignment, he had nothing to sell, and could not convey anything by an assignment to plaintiff"; and (2) that, "if there was no sale made, as claimed by Makarainen, to defendant, but that defendant simply used said logs, which were placed in its rafts contrary to its orders, then you should only find for the plaintiffs for the amount of logs used up to the date of the assignment, to wit, February 21, 1893." These instructions were refused by the court, and, the trial resulting in a verdict and judgment in favor of the plaintiffs, defendant appeals, assigning as error such refusal.

It will be observed from the foregoing statement that no issue was made or tendered by the pleadings as to the ownership of the logs in question, but, on the contrary, it was affirmatively alleged in the answer that they belonged to Makarainen, and that the defendant was indebted to him on the date of the assignment to the plaintiffs for the value of the logs received and converted into lumber by it prior to that date, less the amount paid thereon. The only issues in the case were as to the assignment of the account to plaintiffs, the quantity and value of the logs, and whether they were purchased by the defendant as alleged in the complaint, or re

ceived by it in the manner and under the circumstances set out in the answer. No offer was made to amend, and under the pleadings as they stood the instruction requested by defendant, that, if Makarainen did not own the logs, he could not, by an assignment, vest any title in the plaintiffs to the claim or demand for the price thereof, was not only outside of the issues, but was in the face of the admission of his ownership in the answer, and for that reason was properly refused. It was also properly refused for another reason. The alleged sale by Makarainen to his brother was made prior to the sale of the logs to the defendant, if a sale was made, and before the receipt of them by defendant, if received as stated in the answer, and all the dealings with defendant were had by Makarainen, and in his own name. Defendant regarded him as the owner of the logs, made payments to him thereon, and, indeed, he was the only party known in the transaction as the owner, or claiming any interest therein, prior to his disclosures as a witness at the trial. And while it is true he testified that his brother was in fact the owner, he also testified that he was acting as agent in making the assignment to plaintiffs, and that his act in so doing was subsequently ratified and confirmed. The court could not, therefore, have properly instructed the jury that, if his brother owned the logs, plaintiffs obtained no title by the assignment to them, as it entirely ignored the testimony of Makarainen that he was author-. ized to make the assignment, and that it was subsequently ratified, which would have given it validity even if Makarainen did not own the logs himself. We therefore think the court was clearly right in refusing the instruction as requested.

In support of the other assignment of error It is contended that if the defendant did not purchase the logs of Makarainen, but they were put into its rafts without its consent, it would not be liable for their value until received and used at its mill in Portland, and plaintiffs can only recover in this action for the value of the logs so used and received prior to the date of the assignment to them in February, 1893. From the bill of exceptions it appears that defendant's evidence tended to show that its manager had some conversation with Makarainen in regard to the purchase of the logs, which were then in the boom of the Cowlitz Boom Company, at the mouth of the Cowlitz river, some miles below the city of Portland; but declined to make the purchase, because they were not of suitable lengths and sizes, and so informed Makarainen, and instructed the boom company not to place them in its rafts. In disregard of these instructions, however, the boom company placed the logs in the raft of the defendant, with other logs belonging to it, and they were subsequently brought to its mill in Portland, and sawed into lumber. A portion of the logs was received at the mill prior to the date of the assignment to plain

tiffs and a portion thereafter, but the record is silent as to when they were placed in defendant's rafts by the boom company, and as to when it took possession and exercised acts of ownership and control over them. Assuming defendant's theory of the case to be correct, its liability for the value of the logs attached when they were appropriated or converted by it, and not when they were actually used at the mill, if such appropriation or conversion occurred prior to that time. As the record is silent on this question, we are bound, in view of the rule that error must affirmatively appear, to assume that the instruction was refused by the trial court because there was evidence tending to show a conversion of all the logs before they were received at the mill, and prior to the assignment. Finding no error in the record, the judgment is affirmed.

(27 Or. 150)

VAN AUKEN et al. v. DAMMEIER et al. (Supreme Court of Oregon. April 29, 1895.) APPEAL-BOND-JURISDICTION IN Equity.

1. Where the sureties on the appellant's bond are excepted to, the appellant may, at any time before the expiration of the time for justification, abandon the appeal, and take a new

one.

2. Equity has no jurisdiction, to avoid multiplicity of suits, of a suit to recover the several amounts due on a contract whereby defendants, in consideration of the assignment of the plaintiffs' several interests in an option on a mine, were to refund to each plaintiff the amount already advanced by him to develop the mine.

Appeal from circuit court, Multnomah county; L. B. Stearns, Judge.

Suit by H. Van Auken and others against G. H. Dammeier and another. From a judgment for plaintiffs, defendants appeal. Reversed.

E. B. Watson, for appellants. J. H. Hall, for respondents.

BEAN, C. J. This is a suit in equity, in which 12 persons join as plaintiffs, against Dammeier and Coulter, to recover on an alleged contract by which the defendants agreed to assume and pay to each plaintiff the amount of money advanced by him for the purpose of developing and prospecting a certain mine, under the following circumstances, as alleged in the complaint: On the 14th of October, 1889, one J. H. Fisk, who had an option to purchase the Great Blue Gravel Mine, in the state of Washington, divided such option into 20 shares, of $1,000 each, and sold to the plaintiffs Paquet and Smith, jointly, 1 share; to plaintiffs Buchtel and Mall, 1 share; to plaintiff H. Van Auken, 1 share; to plaintiffs M. M. Hunter, T. De Boest, and Charles Clark, jointly, 1 share; to plaintiff E. House, one-half of 1 share; to plainu W. H. Robertson, 2 shares; to plaintiff J. Surman, 1 share; and also to J. H. Dammeier, 1 share, and to Samuel Coulter, 1