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Citizenship once entered upon, the duties it imposes, or the rights it secures, cannot be either renounced or relinquished by the act of the party himself. In Wynn v. Morris, 16 Ark., 414, 426, it is held that becoming an adopted citizen of a foreign government does not work forfeiture of any rights vested in one by law while a citizen of the United States, though he afterwards leaves this country and takes an oath of allegiance to foreign government with intent and effect to expatriate himself. The general doctrine is declared in Shanks v. Dupont, 3 Pet., 246, to be that "no person can, by any act of his own, without the consent of the government, put off his allegiance and become an alien."

CHAPTER X.

LIABILITY OF ELECTION OFFICERS.

The courts are not entirely in accord as to the extent of liability to which election officers may be held for rejecting the ballots of legal voters. The weight of authority, however, is to the effect that, to make such an officer liable, malice must be alleged and proved, and that an action will not lie for a mere error of judgment. This was the rule laid down in Jenkins v. Waldron, 11 Johns. N. Y., 114, by the Supreme Court of New York, in conformity to the decisions of most of the states in this country and in England. The contrary doctrine is held in Massachusetts, and not without some show of reason, and in Ohio with some qualification.

Jenkins v. Waldron was a suit brought for the rejection of the plaintiff's vote by the defendant, acting as an election officer. It was neither alleged nor proved that the inspectors fraudulently or maliciously refused the vote, and this the court considered "absolutely necessary to the maintenance of an action against the inspectors of an election." (Wickerly v. Geyer, 11 S. & R. (Pa.), 135.) They had no doubt that "malice is an ingredient without which the action cannot be supported," and malice was defined as "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. A public officer, though not strictly a judicial officer, whose duties necessarily demand an exercise of judgment, is not liable to an action, provided he act with purity and good faith. 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.

See also Moran v. Bennard, 3 Brewster, Pa., 601; Commonwealth v. Sheriff, 1 Brewst., 183; Comm. v. Lee, Ibid, 272; U. S. v. Gillis, 2 Cranch C. C., 44; 2 Peckwell, 17, 22; Cullen v. Morris, 3 Stark., 506; State v. McDonald, 4 Harrington, Del., 555; State v. Porter, Ibid, 556; State v. Smith, 18 N. H., 91; State v. Daniels, 44 N. H., 383; Carter v. Harrison, 5 Black, Ind., 138; State v. Robb, 17 Ind., 536 ; Peavey v. Robbins, 3 Jones (N. C. Law), 339; Anderson v. Baker, 23 Md., 531; Miller v. Rucker, 1 Bush., Ky., 135; Rail v. Potts, 8 Humphrey, Tenn., 225.

The case of Rail v. Potts and Baker was an action in which the defendants were sued for preventing the plaintiff from voting at an election in which they acted as judges. The jury found that the defendants had acted in good faith, excluding the plaintiff's vote because they honestly believed he was not entitled to vote. Judgment was accordingly entered for the defendants, and an appeal taken. The question considered on appeal was the same as in the foregoing cases-whether the judges

of an election are responsible in damages for refusing to receive the vote of a legally qualified voter, they at the time not being actuated by any fraudulent, corrupt or malicious intention, but acting in good faith and giving their judgment upon the honest conviction that he was not at the time entitled to vote. It was held, as in the decisions already cited, that the judges of election are judicial officers, and, like other judicial officers, are not liable for damages for mere errors of judgment in the discharge of their duties. Their conduct must be corrupt and malicious, to subject them to an action.1 The same doctrine is held in Maryland, in Bevard v. Hoffman,2 Caulfield v. Bullock,3 and in Morgan v. Dudley, the court, in the last case laying down the broad and general doctrine that no judicial officer, however low his grade as such, is liable to suit for a judicial opinion, however erroneous it may be, if it be not influenced by improper motives.5

1 Rail v. Potts and Baker, 8 (Humphrey's) Tennessee R, 225.

2. Bevard v. Hoffman et al., 18 Maryland, 479.

3. Caulfield v. Bullock, 18 B. Monroe (Kentucky), 494.

4. Morgan v. Dudley, 18 B. Monroe (Kentucky), 693.

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5. Morgan v. Dudley, 18 B. Monroe (Kentucky), 693. The court said: "It is undoubtedly true, as a general principle, that whenever a right is violated, the law provides a remedy for the injury. But this, like all other general rules, is subject to exceptions. From the very nature of a judicial tribunal its action must be necessarily, in some degree, exempted from the operation of this principle. Every erroneous decision violates some right and works an injury to some party. But as every human tribunal is liable to err, no judge, even the most inferior one, should be held responsible for a mere error of judgment, committed by him in the regular discharge of the duties of his office. * * * No action ought, then, in principle,

The doctrine in Massachusetts is that, while, in the absence of corrupt motive, the election officer is not liable to criminal prosecution for depriving a citizen of his vote, a civil action will lie without regard to malice.1

In United States v. Gillis et al., the attorney for the United States, observing that it had been intimated by the court that prosecutions of judges of elections could not be supported, unless a corrupt motive were charged and proved, said, that if such were the opinion of the court, he would enter a nolle prosequi; the court said that such was their opinion, and the prosecutions were accordingly abandoned.2

The weight of authority is decidedly in favor of the doctrine that a judge of election, in the performance of his duty, acts judicially, and is only answerable for acts done corruptly or maliciously.

to be maintainable against the judges of an election, whose functions are to some extent judicial, for refusing to receive a vote, without alleging and proving that, in so acting, they were influenced by bad motives, and decided contrary to their own honest convictions of what was right and proper."

1. Lincoln v. Hapgood, 11 Mass., 350. Said Chief Justice Parker: "The decision of the selectmen is final and conclusive as to the existing election; no means are known by which the rejected 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 a majority of the votes of all the qualified electors 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."

2. U. S. v. Gillis et al., 2 Cranch, C. C. Rep., 44.

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