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(Proof of qualification.)
votes of such persons. In support of the views above expressed, in relation to the meaning of the word "resident,” I refer to the case of Brown v. Keene, decided in the supreme court of the United States, 8 Pet. 112, where that court held, that the word "resident" does not mean a citizen.
WILSON, C. J. I concur in the view taken of this case by Justice Lockwood, in his opinion, and think the judgment of the circuit court should be reversed, upon the ground that Spragins, the judge of the election, has not incurred the penalty of the statute, in receiving the vote of Kyle, inasmuch as the existence of all the requisite qualifications which the statute requires, in order to entitle him to vote, are admitted. It is only when the judge of the election allows the exercise of the elective franchise by one whose right he suspects, or whose vote is challenged by another, without tendering the oath prescribed by the statute, that the judge violates his duty. The broad and important question of the right of suffrage, under the constitution, does not, according to my view of this case, arise; it is one, therefore, upon which I express no opinion.
BROWNE, J., said that he concurred in the views taken of the case by Justice Lockwood.
In New York, the election officers, except in certain special cases (as where the party has been convicted of a crime, or has made a bet on the election), have no power to decide upon the qualifications of a voter; they cannot reject a vote, if the elector be willing to take the oath prescribed by law; the voter is made the judge of his own qualifications, and his conscience, for the occasion, takes the place of every other tribunal. If there be any doubt of the voter's qualifications, the inspectors
(Proof of qualification.)
are required to examine him, on oath, touching the same, and if, in their opinion, he be not duly qualified, they are to admonish him as to the points in which they consider him deficient; nevertheless, if, after this, he persist in his claim to vote, they are compelled to administer to him the general oath, in which he affirms the possession in himself of all the legal qualifications, and if he take the oath, his vote must be received; the inspectors have no discretion in the matter; they can only reject the vote, if he refuse to answer fully the interrogatories put to him touching his qualifications, or to take the general oath. People v. Pease, 30 Barb. 588; s. c. 27 N. Y. 45.
In Pennsylvania, an elector whose name has been omitted from the registry, must make proof of his residence by the oath of at least one qualified voter of the district; and must himself take and subscribe an affidavit of his possession of all the legal qualifications. Purd. Dig.
1556. And after this has been done, the election officers are still the judges of his qualifications, and have power to receive or reject the vote, without any responsibility to the disfranchised elector, provided only they act without malice. See Kneass' Case, 2 Pars. 553.
The point so elaborately argued by Justice Smith, in Spragins v. Houghton, is fully sustained by the unanimous decision of the supreme court of Pennsylvania, in Stewart v. Foster, 2 Binn. 110, where it was held, that alien residents of the borough of Pittsburgh were qualified electors for borough officers; the law conferred the elective franchise upon the inhabitants of the borough, who had resided therein for one year immediately preceding the election, and within that time paid a borough tax; and the court held, in accordance with the opinion of Mr. Justice Smith, that the word "inhabitant" did not mean "citizen." In Massachusetts, however, the supreme court came to the conclusion, that the authority to vote, given to inhabitants and residents, was restricted to such as were citizens. Opinion of the Judges, Cush. Elect. Cas. 120; Harvard College v. Gore, 5 Pick. 370. And see Case of Malden, Cush. Elect. Cas. 377.
JENKINS v. WALDRON.
In the Supreme Court of New York.
MAY TERM 1814.
(REPORTED 11 JOHNSON 114.)
[Liability for rejecting the vote of a qualified elector.]
An action on the case will not lie against the inspectors of an election for refusing the vote of a qualified elector, unless on proof of malice, express or implied.
Waldron brought an action on the case against Jenkins and others, as inspectors of the election held in Hudson, Columbia county, in April 1811, for refusing to receive his vote as an elector.
The plaintiff stated in his declaration that the defendants were inspectors of the poll in the city of Hudson, at the general election in 1811; that the plaintiff was duly qualified to vote for members of the assembly; that he tendered his vote to the defendants, and that they wickedly and designedly refused his vote, and would not permit him to exercise the right of suffrage. The defendants pleaded the general issue.
This action will
Van Buren, for the plaintiffs in error. not lie without alleging and proving that the defendants acted wilfully and maliciously, &c. The plaintiff must prove corruption, and a design to injure the plaintiff. The action does not lie for a mere error of judgment. Harman v. Tappenden, 1 East 555. Drewe v. Coulton, Ibid. 563
Strong, for the defendant, cited and relied on the case of Ashby v. White, 2 Ld. Raym. 938, 950; s. c. 6 Mod. 45; Holt's Rep. 524; 1 Bro. P. C. 45.
(Liability for rejecting vote of qualified elector.)
SPENCER, J., delivered the opinion of the court. It is not necessary to the decision of this cause, to pronounce any opinion on the question, whether Judge Edmonds was a judge de jure, or de facto, when he gave the certificate that the defendant had duly proved himself to be a free man; for, admitting that Judge Edmonds was either, the action, as laid, is not maintainable. It is not alleged or proved that the inspectors fraudulently or maliciously refused to receive Waldron's vote; and this we consider to be absolutely necessary to the maintenance of an action against the inspectors of an election.
The case principally relied on by the counsel for the defendant in error is that of Ashby v. White, 2 Ld. Raym. 938. There the declaration alleged that the rejection of Ashby's vote was done fraudulently and maliciously, and, although the jury found the defendant guilty, the judgment was arrested by three judges, in opposition to the opinion of Chief Justice Holt. This judgment was afterwards reversed in the House of Lords; the reasons for the reversal do not appear in the report of the case; but the ground of the reversal is distinctly stated in the resolutions of the Lords, in answer to the resolutions of the Commons, reprehending the bringing the action, and the judgment thereon. The first resolution of the Lords states, "that by the known laws of this kingdom, every freeholder, or other person having a right to give his vote at the election of members to serve in parliament, and being wilfully denied, or hindered so to do, by the officers who ought to receive the same, may maintain an action in the Queen's courts against such officer, to assert his right, and to recover damages for the injury." 1 Bro. Parl. Cas. 49.
The case of Harman v. Tappenden and others, 1 East 555, and Drewe v. Coulton, in a note to this case, clearly show that this action is not maintainable, without stating and proving malice, express or implied, on the part of the officers. In the case in the text, Lawrence, J., said "there is no instance of an action of this sort maintained for an
(Liability for rejecting vote of qualified elector.)
act arising merely from error of judgment;" and he cited Mr. Justice Wilson's opinion in Drewe v. Coulton, with approbation. In that case the suit was for refusing the plaintiff's vote. Justice Wilson considered it as an action for misbehavior by a public officer in the discharge of his duty, and that the act must be malicious and wilful to render it a misbehavior; and he held that no action would lie for a mistake in law. In speaking of the case of Ashby v. White, he considered it as having been determined by the House of Lords on that ground, from the resolutions entered into by them. The whole of Judge Wilson's reasoning is clear, perspicuous and irresistible; and is fully confirmed in Harman v. Tappenden. It would, in our opinion, be opposed to all the principles of law, justice and sound policy, to hold that officers, called upon to exercise their deliberative judgment, are answerable for a mistake in law, either civilly or criminally, when their motives are pure, and untainted with fraud or malice. Judgment reversed.
The rule laid down in Jenkins v. Waldron, that an election officer is not liable, either civilly or criminally, for refusing the vote of a qualified voter, unless on proof of malice, has been generally followed by the courts of the several states. In Pennsylvania, the question came before the supreme court in the case of Weckerly v. Geyer, 11 S. & R. 35, which was an action in the case for wrongfully refusing the plaintiff's vote at a corporate election, and Tilghman, C. J., said: "We have no doubt that malice is an ingredient, without which the action cannot be supported. By malice, I mean, the refusal of a vote from improper motives, and contrary to the inspector's own opinion. It is not necessary that this should be expressly proved; the jury may infer it from circumstances; direct and positive proof, in a case of this kind, is hardly to be expected. But a man who is placed in a public station, as an officer of the commonwealth, or of a corporation, in which, though not strictly a judicial office, he must necessarily exercise his judgment (such as an inspector or judge of an election), is not liable to an action, provided