disputed, we do not think it ought to be a source of speculation to those who may be ready to take advantage of any injury, and turn it to their profit, to the vexation and distress of men who have unfortunately been obliged to decide on a question sometimes intricate and complicated, but who have discovered no disposition to abuse their power for private purposes. And we, therefore, think that juries should always, in estimating the damages, have regard to the disposition and temper of mind discoverable in the act complained of, and probably the Court would determine that a sum, comparatively not large, would be excessive damages, in a case where no fault but ignorance or mistake was imputable to the selectmen." And in Henshaw vs. Foster, [9 Pick., 312,] the same Court assessed a fine of only one dollar against an election officer who had rejected a legal vote, but who had done so in the honest discharge of his supposed duty.

§ 498. The Supreme Court of Pennsylvania, in Weckerly vs. Geyer, laid down as the law of that State the rule that malice must be shown to sustain an action on the case against an officer of an election for refusing the plaintiff's vote, and enforced it as follows:

"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

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 inspector or judge of an election) is not liable to an action, provided, he act with purity and good faith; but, that he is responsible if he act wilfully and maliciously, was decided in the English House of Lords in the case of Ashby vs. White, 1 Bro, P. C. 49, and has been held for law ever since."

§ 499. It has been held that registering officers are not responsible, in damages, for refusing to register an elector however erroneous their refusal may be, if produced by an honest mistake or error of judgment, but if they act corruptly or maliciously, they are liable to the person injured. [Pike vs. Magoun, 44 Mo., 492.

§ 500. In this latter case the doctrine is laid down that a judicial officer is in no case to be held liable in damages for an error of judgment, and where there is no malice, and this doctrine is supported by the citation of numerous authorities. The Court further inquires whether the officers of registration, under the statute of Missouri, were judicial officers, and upon this point the Court say:

"Their duties were partly ministerial and partly judicial; that is, they were required to exercise a discretion and judgment when determining the qualifications of those presenting themselves for registration," and while holding that these officers were not in a strict sense, judicial officers, the Court yet held that they were, like judges of election, clothed with discretionary power, and acted quasi judicially, and that it was therefore necessary to al

lege and prove that their official action was knowingly wrongful, malicious or corrupt, in order to hold them liable in damages therefor.

to vote.

§ 501. The duties of election officers are generally clearly defined by statute, particularly as to the manner of conducting the election and of determining disputed questions as to the right of individuals In some of the States if the voter will make an affidavit, the form or substance of which is prescribed, his vote is to be received without further evidence or inquiry. Such is the law of Illinois.— [Spragins vs. Houghton, 3 Ill., 377, Brightley's Election cases, 162.] And in New York, [People vs. Pease, 30 Barbour, 588.].

It is the policy of the law upon this subject to leave as little as possible to the discretion of election officers. In the statutes of most, if not of all of the States, there are numerous and minute provisions framed for the purpose of anticipating questions, which may arise at the polls, and the manner of their determination. These statutes are wisely so framed, as to prevent uncertainty and debate as to the proper decision of questions arising amid the confusion and excitement of an election. For example, the statute of Illinois, under which the case of Spragins vs. Houghton arose, prescribed the form of the oath to be taken by a voter when challenged and provided that "if the person so offering his vote shall take such oath or affirmation, his vote shall be received, unless it shall be proved by evidence, satisfactory to a majority of the judges, that such oath or affirmation is false." And it was held that under this statute the judges had no discretion;

they were bound to receive the vote of a person who took the oath, unless proof was offered to show that the oath was false. And this construction of the Illinois statute was doubtless correct in its application to the case decided, for it is beyond question that if the officer obeys such a statute he cannot incur any of its penalties. But a case may arise where the officer knows, or has reason to believe, that notwithstanding the oath taken by a person offering to vote, he is not a legal voter, where in fact the officer knows, or has reason to believe, that the oath is false. May not the officer reject such a vote notwithstanding the person offering it takes the oath, and justify his act by proving that the oath was false? In such a case, of course, the officer takes upon himself the burden and the risk of proving the oath of the alleged voter to be false.

Thus in State vs. Robb, [17 Indiana, 536,] it was held that the election board, whose duty it was to decide upon the qualifications of voters, may refuse the vote of a person who takes or offers to take the oath prescribed by law as to his qualifications, but they do so at the peril of being able to show that he was not a legal voter, upon a prosecution for refusing the vote. It was further held, however, that when the person offering to vote takes the prescribed oath, the board are justified in receiving the vote, unless it can be shown that they acted corruptly, and were cognizant of the fact that he was not a legal voter. The doctrine of this case seems to be that if the board know that the voter swears, or offers to swear falsely, and that he is not entitled to vote, it is not only their right, but their duty to re

fuse the vote, notwithstanding such offer to swear. The statute of Indiana, under which this case arose, unlike that of Illinois, supra, was intended to, and did preclude the election board from taking testimony relative to the right of any person to vote who might offer to take the oath therein prescribed. The plaintiff offered his vote, and offered to take the oath prescribed, but the defendant, who was an inspector of the election, refused to administer said. oath, or to permit him to vote, and he was permitted to prove as his justification, that the plaintiff was not a legal voter, and that if he had taken the oath, he would have sworn falsely.

§ 502. Subject to the qualification above stated, the general rule is that a statute prescribing the form of oath to be taken by a person offering to vote, and requiring the vote to be received if the oath be taken, leaves no discretion in the judges of election, and takes from them all power to decide upon the qualifications of a voter. Thus in New York it is held that, except in certain special cases, (as where the party has been convicted of a crime, or has made a bet on the election,) 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 is any doubt as to the voter's qualifications, the inspectors 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 persists in his claim to vote, they are compelled to administer to him the general oath in which he affirms the pos