(Liability for rejecting vote of qualified elector.)

he act with purity and good faith; but that he is responsible, if he act wilfully and maliciously, was decided by the English House of Lords in the case of Ashby v. White, 1 Bro. P. C. 49, and has been held for law ever since." And see 2 Peckwell 17, 22; Cullen v. Morris, 3 Stark. 506.

The same point was ruled, in Moran v. Rennard, 3 Brewst. 601; Commonwealth v. Sheriff, 1 Brewst. 183; and Commonwealth v. Lee, Ibid. 273 (both of which two last cases were criminal prosecutions). In Commonwealth v. Lee (ante 100), Judge Butler said: "The officer is not made responsible for a mistake of judgment; if he rejects the vote of one whom he believes not qualified, he is not liable to the penalties of the statute, although the individual may have been qualified and entitled to vote. It is for a wilful disregard of his duty, that he is made liable to punishment, and not for an error of judgment. The statute did not, in this respect, create a new offence; the rule of the common law was the same. A public officer, required to exercise judgment, must do so conscientiously; nothing more is required; to punish him for an honest mistake would be cruel; if the law were otherwise, no sensible man would be found willing to occupy such an office." To the same effect is the case of the United States v. Gillis, 2 Cranch C. C. 44; State v. McDonald, 4 Harrington 555; State v. Porter, Ibid. 556.

The same rule prevails in New Hampshire, State v. Smith, 18 N. H. 91; State v. Daniels, 44 N. H. 383: in Delaware, State v. McDonald, 4 Harrington 555; State v. Porter, Ibid. 556: in Indiana, Carter v. Harrison, 5 Blackf. 138; State v. Robb, 17 Ind. 536: in North Carolina, Peavey v. Robbins, 3 Jones (Law) 339: in Kentucky, Caulfield v. Bullock, 18 B. Mon. 494; Morgan v. Dudley, Ibid. 693; Miller v. Rucker, 1 Bush 135 : in Tennessee, Rail v. Potts, 8 Humph. 225: and in Maryland, Bevard v. Hoffman, 18 Md. 479; Anderson v. Baker, 23 Md. 531 (ante 27).

But in other states, it is held, on the contrary, that an action lies against election officers for unlawfully rejecting the vote of a qualified elector, though such refusal were without malice. Thus, in Massachusetts, it is held, that although the selectmen of a town cannot be proceeded against criminally for depriving a citizen of his vote, unless their conduct be the effect of corruption, or some wicked and base motive; yet, that a civil action will lie against them, without regard to the question of malice. In Lincoln v. Hapgood, 11 Mass. 350, Chief Justice Parker said: "The decision of the selectmen is necessarily final and conclusive, as to the existing election; no means are known, by which the rejected

(Liability for rejecting vote of qualified elector.)

vote may be counted by any other tribunal, so as to have its influence upon the election; or, at least, no practice of that kind has ever been adopted in this state. There is, therefore, not only an injury to the individual, but to the whole community; the theory of our government requiring that each elective officer shall be appointed by the majority of the votes of all the qualified citizens, who choose to exercise their privilege. Now, if a party duly qualified is unjustly prevented from voting, and yet can maintain no action for so important an injury, unless he is able to prove an ill design in those who obstruct him, he is entirely shut out from a judicial investigation of his right, and succeeding injuries may be founded on one originally committed by mistake. He may thus be perpetually excluded from the common privilege of citizens, without any lawful means of asserting his rights, and restoring himself to the rank of an active citizen. Such a doctrine would be inconsistent with the principles and provisions of our free constitution, and must give way to the necessity of maintaining the people in their rights, secured to them by the form of their government."

So too, in Gates v. Neal, 23 Pick. 308, it is said by Shaw, C. J., "that if any person duly qualified to vote whose name is upon the list of voters, and who has, in other respects, complied with the requisitions of the law, is prohibited from voting by the selectmen or other officers whose duty it is to superintend elections, he shall be considered as deprived of a valuable right, and may maintain an action therefor, without being required to prove that such officer acted from malice, or from any unlawful or unjustifiable motive. This was long since held, upon the ground, that it will afford the best security to this high and important privilege, and that, without it, a voter might often be refused his privilege upon slight and frivolous grounds, but yet under such circumstances, as to render it difficult, if not impossible, to prove actual malice in the officers superintending the elections." The same point was ruled in Blanchard v. Stearns, 5 Met. 298. And see Capen v. Foster, 12 Pick. 485 (ante 51); Bacon v. Benchley, 2 Cush. 100.

The like rule prevails in Ohio, Jeffries v. Ankeny, 11 Ohio 372; Anderson v. Milliken, 9 Ohio St. R. 568: and in Wisconsin, Gillespie v. Palmer, 20 Wis. 544.

In the states, however, in which this latter view prevails, the action is regarded as one for the determination of the plaintiff's abstract right as an elector, and he is confined to nominal damages, unless on proof of

(Liability for rejecting vote of qualified elector.)

malice, or other unlawful motive. Lincoln v. Hapgood, 11 Mass. 357; Blanchard v. Stearns, 5 Met. 298; Capen v. Foster, 12 Pick. 487 (ante 52); Gates v. Neal, 23 Pick. 310. If, however, they act wilfully and corruptly, they are liable to exemplary damages. Elbin v. Wilson, 33 Md. To sustain such action, the plaintiff must show affirmatively, that he offered sufficient evidence to the defendants of his qualification as a legal voter. Blanchard v. Stearns, 5 Met. 298; Lombard v. Oliver, 7 Allen 155. Otherwise, this anomalous state of facts might exist, that the elector, although unable, at the proper time, to prove his qualification, in the mode prescribed by law, might afterwards, on the trial of an action against the election officers, or of a contested election, prove conclusively, by what the courts would deem legal evidence (although such as the election officers were not permitted to receive), that he was, on the day of election, a duly qualified voter under the state laws. Thus, an unassessed voter, in Pennsylvania, is required by law to prove his residence within the election district, by the oath of a qualified elector; this he might not be able to do, on the election day, yet, on a subsequent trial, he might be able to prove the fact, by the oaths of many witnesses who, though not qualified electors, were competent, by the rules of the common law.

Election officers are generally punishable by indictment, for knowingly receiving the vote of one who is not a duly qualified elector. State v. Roll, 7 West. L. J. 138; State v. McDonald, 4 Harrington 555. The specified offence, however, must be set forth in the indictment; it is not enough to charge it in general terms. Commonwealth v. Miller, 2 Pars. 480. And the act must be alleged to have been "unreasonable, corrupt or wilfully oppressive." State v. Small, 1 Fairf. 109. So, different election officers, charged with distinct duties, cannot be joined in the same indictment. Commonwealth v. Miller, 2 Pars. 480. If, however, the statute make either of two or more distinct acts, connected with the same general offence, and subject to the same measure and kind of punishment, indictable separately, and as distinct crimes, when committed by different persons, or at different times, they may, when committed by the same person, at the same time, be coupled in one count, as constituting one offence. Byrne v. State, 12 Wis. 519. The offence consists in wilfully and corruptly doing an act, or omitting a duty, which a person acting in a public capacity knows it to be his duty to do, or

(Right of interested parties to vote.)

omit, in disregard of his official duty and the obligations of his oath. State v. Porter, 4 Harrington 556.

Registering officers are not responsible in damages for refusing to register an elector, however erroneous their refusal may be, if produced merely by a mistake in judgment; but if they act corruptly or maliciously, they are liable to the person injured. Pike v. Megoun, 44 Mo. 492. They are judicial officers, and their decisions are of a judicial nature. State v. Staten, 6 Cold. 234.

COMMONWEALTH v. MCCLOSKEY.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1830.

(REPORTED 2 RAWLE 369.)

[Right of interested parties to vote.]

On the trial of a contested election, the members returned as elected, though sworn in, are not competent to vote on the question of the validity of their own election.

Rule to show cause why an information in the nature of a writ of quo warranto, should not be filed against the defendants, James McCloskey, John Paisley and David Farrell, to inquire by what authority they exercised the office of commissioners of the township of Moyamensing, in the county of Philadelphia.

The act of assembly of the 24th March 1812 provided that the board of commissioners should consist of nine persons, three of whom should be elected annually, to serve for three years. That the three persons who should have the highest number of votes for said office, together with the six commissioners, whose time should not have expired, should meet on the first Monday of April succeed

(Right of interested parties to vote.)

ing such election, and receive the return of the commissioners elect, and should forthwith proceed to examine the same and to judge and determine thereon; and for that purpose, the said commissioners, or a majority of them, should be judges of the said election, and should have full power and authority to approve thereof, or to set aside the same, and to order new elections, as the case might require.

On the 20th March 1829, an election was held for three commissioners, to serve for three years; the defendants were returned as duly elected. On the first Monday of April, the board of commissioners were convened; five of the old commissioners were present, and one was absent. A memorial signed by fifteen inhabitants of the township, complaining of corruption and illegality in the election, was presented to the board, accompanied by depositions tending to prove that three illegal votes had been received; and an offer was made to prove other illegal votes.

The three commissioners elect had been sworn into office previously to the meeting of the board; at the meeting, they insisted on voting to approve their own election; two of the old commissioners asserted the right of the three commissioners elect to vote, but the other three protested against it. They divided and formed two separate bodies; the three commissioners elect, and two of the commissioners holding over, constituted themselves a board, and organized by the election of officers. The other three remaining commissioners, together with the one who was at first absent, but afterwards attended, organized themselves into another board.

The former, composed partly of the commissioners elect, refused to receive the memorial; the latter body received it, and notified the defendants to appear on the 15th April, when they would proceed to examine into and determine the validity of the election. The commissioners elect did not appear, whereupon the board proceeded to a hearing of the case, declared the election void, and ordered a new