(Privileges of electors.)

The defendant insisted that the plaintiff, at the time of the arrest, was not attending the meeting as an elector; that he then waived his privilege of protection, if any he had, by not expressly claiming it; and that if he had any cause of action, the proper remedy was, by an action on the case.

The court instructed the jury that, if they should find that, at the time of the arrest, the plaintiff was in the exercise of his franchise as an elector, and did not waive his privilege of protection, the present action was sustainable, and they must return a verdict for the plaintiff; but if they should find, that the plaintiff, at the time of the arrest, was not in the exercise of such franchise, or that he waived his privilege of protection, they should return a verdict for the defendant. And further that the protection of an elector from arrest, being a right secured by the constitution, a waiver of it could not be inferred from mere silence; and that such protection comprehended the time of reasonably going to, attending on, and returning from the electors' meeting. The jury having found for the plaintiff, the defendant moved for a new trial, on the ground of misdirection.

Miner and Huntington, for the defendant, in support of the motion for a new trial.

Boardman, contrà.

HOSMER, C. J., delivered the opinion of the court. Under the charge given to the jury, they must have found that, at the time of the arrest, the plaintiff was in the exercise of his franchise as an elector, and that he did not waive his privilege of protection; from the facts stated in the motion, my mind would be led to the same result; retiring to a house in the neighborhood, while the proper officers were counting the votes, the defendant, on a fair construction of the constitution, was attending on the business of

(Privileges of electors.)

the election; and mere silence, on his part, was no waiver of the privilege. Lightfoot v. Cameron, 2 W. Bl. 1113. The jury were instructed that, if the plaintiff was in the exercise of his franchise, when arrested, and did not waive his protection, the action of trespass was sustainable; but to this I cannot accede. I consider the elective franchise as a noble privilege; and view it, not merely as a public, but likewise as a personal benefit; and the privation of it, maliciously, as vindicable by an action on the case. King v. Coit, 4 Day 129; Ashby v. White, 2 Ld. Raym. 938; Starling v. Turner, 2 Lev. 50; s. c. 1 Vent. 206; Drewe v. Coulton, 1 East 563 n.; Jenkins v. Waldron, 11 Johns. 114 (ante 190). But the arrest, made in pursuance of a legal judgment and execution, was valid; and the injury, if any, resulted from the malice which prompted the proceeding; the officer acted by lawful and regular process, commanding the arrest in question, and if he was not under the influence of a bad motive, he is not responsible for his conduct to the plaintiff; the quo animo must be the gist of any action sustainable against the defendant, and this inquiry is inadmissible to fix on him a trespass. 1 Chit. Pl. 136. When the process of a court has been abused, trespass is the proper action, if the conduct of the officer was, in the first instance, illegal, and produced an immediate injury to the body; as, if the sheriff arrest out of his county, or after the return-day of the writ, or, by any act of his, after the arrest, become a trespasser ab initio. 1 Chit. Pl. 185-6. But no such abuse of process exists, in this case; and the only ground of complaint is, a violation of the plaintiff's privilege, for which no action of trespass has ever been sustained. 1 Chit. Pl. 184; Luddington v. Peck, 2 Conn. 700; Tarlton v. Fisher, 2 Doug. 646; Cameron v. Lightfoot, 2 W. Bl. 1190.*

It was the duty of the officer, in compliance with the execution, to make the arrest, unless he had knowledge that the plaintiff was under the protection of his privi

* And see Kennedy v. Barnett, 64 Penn. St. R. 141.

(Privileges of electors.)

lege. The arrest, per se, was not only valid, but in every view proper, admitting only the above exception; and in many cases, to make inquiry into the various facts which confer on an individual the privilege of protection, and to decide them at his peril, would place an officer in a situation of extreme difficulty. He cannot administer an oath, nor compel the attendance or testimony of witnesses, and is without the means of coming to a satisfactory result. It ought always to devolve on the person arrested, with whom is the knowledge of the facts, to prove that he is under protection, and that this was known to the officer arresting him; and to do this, he must bring his action on the case, which is precisely adapted to such an inquiry. New trial granted.

In all the states, it is believed, that electors are privileged from arrest, except for treason, felony or breach of the peace, during their attendance on the election, and in going to and returning from the same. And this, of course, includes the election officers. Anon., 1 Brewst. 182. The principal difficulty that is likely to arise under this provision is, as to what amounts to a breach of the peace; does it include every indictable offence? or is it confined to those which are attended with actual violence or disturbance of public order? In Rex v. Wilkes, 2 Wils. 151, Lord Camden delivered the unanimous judgment of the court of common pleas, that a libel was not a breach of the peace, and that a member of parliament was not liable to arrest by reason of having been convicted of that offence; very soon afterwards, however, it was resolved by both houses of parliament, that the writing and publishing of seditious libels was not entitled to privilege. 1 Bl. Com. 166. In Cecil v. Nottingham, 12 Mod. 348, where there had been an arrest on Sunday, under an attachment for contempt, Lord Holt said, 'suppose it were a warrant to take for forgery, perjury, &c., shall they not be served on Sunday? and shall not any process at the king's suit be served on Sunday? surely, the Lord's day ought not to be a sanctuary for malefactors; and this partakes of the nature of process upon an indictment." And Blackstone says, "it seems to have been understood, that no privilege of parliament was allowable to the members,

66

(Privileges of electors.)

their families or servants, in any crime whatsoever, for all crimes are treated by the law as being contra pacem. 1 Bl. Com. 166. In 1839, the court of common pleas of Bucks county, Pennsylvania, decided, that a warrant of arrest on a charge of malicious mischief could be executed on Sunday. 1 Haz. U. S. Reg. 263. But the district court of Philadelphia have ruled, that an arrest on Sunday, on a warrant for obtaining goods by false pretences, was illegal, and that the officer who executed it was a trespasser, and liable to an action for false imprisonment. Bailey v. Simpson, Binns's Justice 498, n. And see Commonwealth v. Eyre, 1 S. & R. 347. The question, in view of these authorities, can hardly be considered as settled, though the weight of authority appears to be in favor of the right to arrest for any indictable offence.

It is the privilege of the elector, not to be compelled to disclose for whom he voted. Respublica v. Ray, 3 Yeates 66. This, however, is a personal privilege, and one that may be waived by the elector. Kneass's Case, 2 Pars. 553. A legal voter is not deprived of this privilege, simply because his name has been omitted from the list of taxables. Thompson v. Ewing, 1 Brewst. 69. Nor, because his vote was received after the legal hour for closing the polls. Locust Ward Election, 4 Penn. L. J. 341. But a disqualified person is not entitled to the privilege; he may be compelled to disclose the character of his vote. McDaniels' Case, 3 Penn. L. J. 310 (ante 238). It must first, however, be established, that the witness was not a qualified elector, before he can be compelled to testify. Thompson v. Ewing, 1 Brewst. 68.

BROWN v. COMMONWEALTH.

In the Supreme Court of Pennsylvania.

JANUARY TERM 1856.

(REPORTED 4 PITTSBURGH LEGAL JOURNAL 668.)

[Proxies.]

It seems, that the members of a private corporation have not the right to vote by proxy, at the annual election for officers, in the absence of any authority to do so in their charter.

A provision that "each person, being present at an election," shall be entitled to vote, excludes the right to vote by proxy.

Error to the court of Common Pleas of Philadelphia. The Keystone Land and Building Association was incorporated in June 1852; the charter provided that “each person, being present at an election, and holding, in his or their own right, one share of stock, shall be entitled to one vote for directors." At the annual election in June 1852 and 1853, votes by proxy were received, without objection; but at the election in 1855, the tellers refused to receive such votes; the directors elected in June 1854, refused to surrender their offices, whereupon a writ of quo warranto was sued out, at the suggestion of the new directors.

On the trial, the court below refused to admit evidence on the part of the defendants of the votes by proxy; there was a verdict for the relators, and judgment of ouster; whereupon the defendants took their writ of error, and assigned for error, the rejection of the evidence of the votes by proxy.

Hanbest and Hirst, for plaintiffs in error.

Earle and Phillips, for defendants in error.