Packwood

When this case was in Department the opinion hereto attached was prepared by Mr. Commissioner Britt, and after further consideration we are satisfied with the conclusion therein reached. For the reasons given in that opinion the *479 judgment is reversed, with directions to the court below to dismiss the proceeding:

Justice Henshaw took no part in the decision of this case.

Harrison, J., and Temple, J., dissented.

I concur in the judgment of reversal. The requirements as to time and place of holding elections are certainly mandatory. • But time in this connection means the proper day for holding the election, and does not mean that the polls must necessarily be opened at the hour of sunrise on that day. A slight delay in opening the polls, explained and excused by the absence of one of the officers, and by the necessity of setting up the booth, railings, etc., ought not to disfranchise the voters of a precinct, in the absence of any showing of actual injury. Delay in opening the polls in a precinct, where ample time is still left for receiving all the votes, is a much less serious irregularity than a premature closing of the polls, and yet I suppose it would scarcely be contended that an entire precinct should he thrown out because the polls were closed at 4 o’clock, or even earlier, if at the same time it ap *482 pfeared tliat'every registered voter had deposited his ballot be-1 fore/the closing.' i

In this case it was found by the court, although it had not befen alleged, that- at least one voter was prevented from casting his ballot by the delay in opening the polls, hut it did not ap-;…