tute the offense charged. It is, therefore, not sufficient to charge in general, in an indictment, that the officers of an election did commit wilful fraud in the discharge of their duties; there must be some specific averment of a fact which constitutes the fraud charged. It is not sufficient to lay the offense in the words of the statute, unless those words serve to allege the fact with all the necessary additions, and without any uncertainty or ambiguity. (2 Parson's Select Cases, 480.)

§ 490. The statute of Rhode Island provided for the punishment of any person who at "any election shall fraudulently vote, not being qualified." Under this statute it was held, that to warrant a conviction it must be shown that the vote was fraudulently cast, that is, with knowledge by the voter that he was not qualified to vote; and that an honest mistake by a voter as to his right, and an assertion of it by voting, will not render him liable under the statute, even though he is cognizant of the facts which constitute the defect in his right. (State vs. Macowber, 7 R. I., 349.) In this case it is said that "the distinction between acts done honestly under a mistaken sense of right, and acts done fraudulently, with a consciousness of wrong, is familiar to every one who has had occasion to trace the boundary line between trepass and larceny." And see also State vs. McDonald, 4 Harrington, 555. State vs. Porter, do, 556.

§ 491. Substantially the same doctrine was laid down in State vs. Smith, et al, [18 N. H., 91.] This was an indictment charging defendants, as selectmen, with erasing from the list of voters of the town of Boscamen, the name of Timothy Kelley, alleged to have been a legal voter of that town. It was, under the statute, the duty of the selectmen to hear all applications for the insertion of the name of any person upon the list, or for the erasure of any name

any

*

*

therefrom, and to hear proof, and decide all such applications. And the statute provided that "if any selectman at any session holden for the correction of list of voters, shall * * knowingly erase from or omit to insert the name of any legal voter, he shall be punished," &c. It was held that the selectman could not be punished for an erroneous decision merely, but only for corruption.

§ 492. And it was observed by the Court, that notwithstanding the effort to distinguish by law clearly and plainly the persons who are entitled to vote, "there are still cases of no little difficulty constantly arising under those laws, some of which might well tax the acumen of persons more accustomed to investigate such questions than many of those persons are, who are required in every town to decide and to settle them. They are questions, in short, in the decision of which errors are not unlikely to occur, and it is certainly an anomaly in the law if those, who are charged with the duty of deciding them, are liable to be charged criminally for forming an opinion that the court may, upon inquiry, pronounce to be erroneous."

§ 493. And in Wisconsin the same doctrine was very clearly and forcibly stated in Byrne et al vs. The State, [12 Wis., 519.] It was there very clearly shown that the rule that ignorance of the law excuses no man, has no application to acts which are in their nature official, and done in the exercise of a discretionary power conferred by law. That maxim applies to acts which are voluntary, and will estop such officers from setting up their ignorance of the penalties inflicted by a statute, as an excuse for their wilful violation of the duties which it imposes upon them. Where the officer is obliged by law to act and to decide, the most that reason or justice can require of him, is a bona fide effort to discharge his duties

according to the best of his knowledge and ability.

§ 493a. A statute which provides for the punishment of any one who shall "wrongfully put or insert" ballots in the box, was construed to apply to a case where the defendant handed a fraudulent ballot to a judge of the election, with the intent to induce him to deposit it in the box. Such a statute will be so construed as to attain the evident object of the legislature. (Commonwealth vs. Gale, 10 Bush., [Ky.,] 488.) And see as to requisites of an indictment for unlawful voting. U.S. vs Johnson, 2 Sawyer, 482. U. S. vs. Hendrie, Ib 479 U S. vs. O'Neill, Ib. 481.

CHAPTER XI.

CIVIL LIABILITY OF ELECTION OFFICERS FOR

MISCONDUCT IN OFFICE.

§ 494. The general rule is that an officer of election, or of registration, who shall wilfully and corruptly refuse to any citizen who is duly qualified, the right to vote, or to register, is liable in damages to the person injured. In several of the States, as we shall presently see, it is regarded as sufficient to show that the plaintiff has been unlawfully deprived of his right, without proof of a malicious or corrupt purpose on the part of the officer, but the general doctrine is as above stated. In Massachusetts, where it is not necessary to show malice, it has been held that the officer is not liable, if he acted under a mistake, into which he was led by the conduct of plaintiff. (Humphrey vs. Kingman, 5 Metcalf, 162.)

§ 495. In England, and in most of the States of the Union, the rule above stated is regarded as well

Ca

settled, and no action is held to be maintainable against an officer of election for rejecting the vote of a citizen, without proof that such rejection was wilful and malicious. In Massachusetts, by a series of decisions, the law is settled otherwise. (Killiam vs. Ward, 2 Mass., 236. Lincoln vs. Hapgood, 11 Mass., 350. Henshaw vs. Foster, 9 Pick., 312. pen vs. Foster, 12 Pick., 485. Blanchard vs. Stearns, 5 Metcalfe, 298.) But in the latter case it was held that in order to recover, the plaintiff in such an action must allege and prove that he furnished defendants with sufficient evidence of his having the legal qualifications of a voter, before defendants refused to receive his vote. This decision comes almost up to the rule as it exists in most of the other States, because if the voter furnished sufficient evidence of his right, that fact would go far to prove wilfulness on the part of the officer, who, in the face of such evidence, refuses him the privilege of voting.

§ 496. The rule laid down in the Massachusetts cases has been followed in Ohio, (Jeffries vs. Ankeney, 11 Ohio, 373. Anderson vs. Milliken, 9 Ohio State R., 568,) and also in Wisconsin, (Gillespie vs. Palmer, 544.) But the weight of authority is decidedly the other way. (Jenkins vs. Waldron, 11 Johnson, [N. Y.,] 114. Weckerly vs. Guyer, 11 S. & R., 35. Moran vs. Rennaud, 3 Brewster, 601. Commonwealth vs. Sheriff, 1 Brewster, 183. State vs. Smith, 18 N. H., 91. State vs. Daniels, 44 N. H.. 383. State vs. McDonald, 4 Harrington, [Del.] 555. State vs. Porter, ibid, 556. Carter vs. Harrison, 5 Black f., 138. State vs. Robb, 17 Ind., 536. Peaney vs. Robins, 3 Jones, [Law,] 339. Caulfield

vs. Bullock, 18 B. Mon., 494. Morgan vs. Dudley, ibid, 693. Miller vs. Rucker, 1 Bush., 135. Rail vs. Potts, 8 Humph., [Tenn.,] 225. Bevard vs. Hoffman, 18 Ind., 479. Anderson vs. Baker, 23d Md., 531.) Even in those States where the Massachusetts rule prevails, it is believed that no more than nominal damages is ever allowed, in the absence of proof of a corrupt purpose.

The action in those States is regarded rather as one for, the determination and settlement of the plaintiff's right to vote, than as a suit to recover damages. (Brightley's Election Cases, 194.) In Jeffries vs. Ankeney, supra, the Supreme Court of Ohio said:

"It is generally true that no suit lies against an officer for a mistake in the exercise of his judicial discretion; but when we reflect how highly the privilege of voting is generally valued, and that the legislature has provided, and the forms of law admit, no other remedy than this action, we unite in the opinion that a necessity exists for entertaining this remedy. In the absence of malice, where the suit is brought merely to assert the right, the damages will be nominal and small."

§ 497. And the Supreme Court of Mass., while maintaining the rule that election officers are liable for rejecting a legal vote without proof of malice, seems to have endeavored to so administer the law under that rule as to take away much of its severity. Thus in Lincoln vs. Hapgood, [11 Mass., 357,] the Court said:

"But, notwithstanding we deem it necessary that this action should be supported as the only mode of ascertaining and enforcing a right which has been