The opinion
On Rehearing.
(March 23, 1898.)
Brannon, President:
A petition for rehearing makes the burden of its argument the fact that the statute requiring poll clerks to sign their names is mandatory, and therefore concludes that they must sign with their own hands. This is non scqui-lur. I admit that the provision is mandatory. Therefore, if there were no signatures at all, or only one, the ballots would be void; but the signatures are both found on the ballots, though the act of signing was irregularly done. So the question is not whether the statute is mandatory, but whether, though mandatory, the signing is a substantial compliance with it; for, though a statute be mandatory, literal compliance with it is not indispensable, but a fairly substantial compliance is sufficient. Suth. St. § 454. The statute against oral contracts is also mandatory, because it prohibits actions on certain contracts unless signed, and it is settled that signature by one man in the presence of another, with his assent, complies with the law, as shown above. Appealing to the principles of the Dial Case that substantial compliance with a statute is all that is necessary, and that an innocent misstep not shown to produce a wrong in an election, will not affect it, I hold that this irregularity ought not to defeat the result of a fair election. Nor is the question here one of agency. It is not whether a poll clerk can constitute an agent to sign in his absence, as he was present directing the act.
Affirmed.