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(Majority for disqualified person.)

to the office, if judgment be given against the party in possession.

After what has been said, it will be seen, that we are of opinion, J. Y. McLaughlin has no such interest as entitles him to be heard in a writ of quo warranto; the question which he seeks to raise is a public one exclusively, and it can be raised only at the instance of the attorney-general.

Writ of quo warranto denied.

THOMPSON, C. J., dissented.

"An

The doctrine of the principal case is sustained by the decision of the supreme court of California, in Saunders v. Haynes, 13 Cal. 145; in that case, Baldwin, J., who delivered the opinion of the court, says: election is the deliberate choice of a majority or plurality of the electoral body; this is evidenced by the votes of the electors; but if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows, that the next to him in the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all, but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is next to him on the list of candidates, does not receive a plurality of votes, because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject." The same point was ruled by the supreme court of Wisconsin, in State v. Giles, 1 Chand. 112; and in State v. Smith, 14 Wis. 497. And see Opinion of the Judges, 38 Maine 597; State v. Boal, 46 Mo. 528; Cush. Elect. Cas. 496, 576. The election of a disqualified person, though voidable, is not ipso facto void. State v. Anderson, Coxe 318.

(Majority for disqualified person.)

On the contrary, the English decisions are unanimous that, if the electors have notice of the disqualification of a candidate, every vote given for him afterwards, will be thrown away, and considered as not having been given at all; and consequently, the candidate having the next highest number of votes will be elected. Rex v. Monday, Cowp. 537; Rex v. Hawkins, 10 East 211; Claridge v. Evelyn, 5 B. & Ald. 81; Rex v. Coe, Heywood 361; Rex v. Blissell, Ibid. 360; Rex v. Parry, 14 East 549; Rex v. Bridge, 1 M. & S. 76; Regina v. Coaks, 28 Eng. L. & Eq. 304; 7 Q. B. 406; Cush. Lex. Parl. Am., §§ 175-9; 1 Willc. Corp. § 547; 2 Kyd Corp. 11-12. And this view of the law has been adopted by the supreme court of Indiana, in Gulick v. New, 14 Ind. 93, where the court say, that votes cast, or attempted to be cast, for an ineligible candidate, are ineffectual for every purpose; they have no more effect, in a legal point of view, than if cast for a dead person, or for one who never had a being. To the same effect is Carson v. McPhetridge, 15 Ind. 327; and Stewart v. Hayes, in the circuit court of Stephenson county, Illinois, 3 Chicago Leg. News 117. And see Commonwealth v. Read, ante 129. With all these conflicting authorities upon the question, it seems strange that the learned judge should have said in Commonwealth v. Cluley, "we are not informed that there has been any decision, strictly judicial, upon the subject." The omission to notice them certainly detracts from the authority of the case.

SPRAGINS v. HOUGHTON.

In the Supreme Court of Illinois.

DECEMBER TERM 1840.

(REPORTED 3 ILLINOIS 377.)

[Proof of qualification.]

In Illinois, if a person offering to vote take the oath prescribed by law, it is imperative upon the judges to receive his vote, unless the oath be proved to be false.

Every white male inhabitant, of the age of twenty-one years, who has resided in the state six months immediately preceding any general election, is a qualified elector; the question of citizenship does not enter into the qualification.

Appeal from the Circuit Court of Jo Daviess county. This was an action of debt qui tam, to recover a penalty of $100, for the alleged misconduct of Thomas Spragins, the defendant, as judge of an election held in Jo Daviess county, in August 1838, in receiving the vote of one Jeremiah Kyle, an unnaturalized alien.

The case was submitted to the court below upon an agreed statement of facts, whereby it appeared that the defendant, as judge of an election held on the 6th August 1838, for the precinct of Galena, in the county of Jo Daviess, received the vote of one Jeremiah Kyle, an unnaturalized alien; that Kyle had resided in the state, and in the county of Jo Daviess, more than six months immediately preceding such election; and that the defendant received and counted the vote of said Kyle, knowing that he was not a citizen of the United States, or of this state, and believing him not to be a qualified voter; it was agreed, that if the court should be of opinion that Kyle was not a qualified voter, according to the constitution and laws of the state, judgment should be entered against the defendant for $100, one-half for the use of the plaintiff and

(Proof of qualification.)

the other half for the use of the county; otherwise, judg ment to be given for the defendant. The court below entered judgment for the plaintiff for $100, which was here assigned for error.

Douglass and McConnel, for the appellant.

Walker, Strong and Butterfield, for the appellee.

SMITH, J. The points presented for examination and consideration are doubtless of deep interest, inasmuch as the judgment of the circuit court changes the rule regulating the exercise of the elective franchise, which has prevailed, ever since the adoption of the state constitution, under that constitution and the laws of the state, which have been uniform and unchanged, as to the qualification of voters, during that period, and has now, for the first time, received a new and entirely different construction, from that which has hitherto prevailed; which, if it be a just and true exposition of our constitution, and the laws regulating elections in this state, will deprive a large portion of the inhabitants of the state of the hitherto admitted invaluable exercise of the right of suffrage. The serious character of the question presented for consideration, and the magnitude of the interests involved, obviously demand of this tribunal the exercise of its most cautious, earnest and deliberate judgment, before a decision be pronounced. No considerations but those of imperative duty, founded on the solemn convictions of the weight and justice of its reasons for the foundation of its opinion, ought to prevail; and in the conclusions to which it should arrive, it should be alone animated by a desire to decide the question upon a just interpretation of the constitution and laws of the state. The effects of its decision, if just and accurate, cannot be looked to, be they what they may, as regards those who may have supposed ulterior political consequences might arise therefrom, according to the pre

(Proof of qualification.)

dominance of the views of the one side or the other of the questions discussed. The duty of the court is as plain as it is imperative; it must decide the question, as it finds the facts arising on the record, and agreeable to the manifest intentions of the constitution and laws of the state. What might or might not be expedient, or more conformable to a supposed more proper principle of political economy, than the rule the framers of the constitution and laws of the state have thought proper to adopt, and by which the case must alone be governed, is not for the court to assume as a rule of action to govern its determination. The plain and obvious import of the constitution and laws, it is the duty of the court to ascertain; and when there is neither ambiguity nor doubt, the result can be easily arrived at.

It becomes important, then, to inquire what qualifications the constitution has prescribed a person shall possess, to entitle him to exercise the right of voting at elections in this state. The 27th section of the 2d article of the constitution declares, that "in all elections, all white male inhabitants, above the age of twenty-one years, having resided in the state six months next preceding the elec tion, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election." In reference to the first general election holden under the constitution, it is declared, in the 12th section of the schedule to the constitution, that "all white male inhabitants, above the age of twenty-one years, who shall be actual residents of this state, at the signing of this constitution, shall have the right to vote at the election to be held on the third Thursday and the two following days of September next." R. S. 48; Gale's Stat. 36.

It is here to be remembered, that the constitution of the state of Illinois was required, by the act of congress of the 18th April 1818, to be republican, and not repugnant to the ordinance of the 13th July 1787, between the original

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