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of March 7, 1882, making it unlawful for any persons to engage in prize-fighting in this State," was intended to prohibit prize-fighting which is public in character, and tends to disturb the peace, it is not sufficient to indict under this statute by the use of the statutory words only; but the facts which, if proved, would show the defendant to be guilty of the statutory offense must be charged.

The indictment must charge that the persons fought together, and against each other, in order to constitute the offense of "engaging" in the fight, and an indictment which charges that S. did unlawfully engage in a prize-fight with K., "to-wit, did then and there enter a ring, commonly called a prize-ring,' and did then and there, in said ring, beat, strike and bruise said " K., is defective as the videlicet excludes the conclusion that K. fought.

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PPEAL from Circuit Court, Marion county, S. H. Terral, J.

Calhoon & Green, for appellant.

T. M. Miller, Attorney-General, for State.

COOPER, J. The appellant has been convicted of the offense of prize-fighting, in violation of an act entitled "An act to prevent prize-fighting in this State, and for other purposes," approved March 7, 1882. The first section of the act declares that it shall be unlawful for any persons to engage in prize-fighting in this State, and any persons engaging in such prize-fighting shall be deemed guilty of a misdemeanor," etc. The indictment contains two counts-the first for a violation of the above statute, and the second for an assault and battery. Appellant was acquitted under the second count, and convicted under the first. defendant pleaded in abatement to the indictment, to which demurrers were interposed, and were sustained; and after conviction he moved in arrest of judgment, and for a new trial; and both motions being denied, he prosecutes this appeal.

The

So much of the indictment as is brought into review is as follows:

"The State of Mississippi, county of Marion. In the Circuit Court for the Second Judicial District of Marion county, at the Special August Term, 1889, the grand jurors of the State of Mississippi upon their oaths present that John L. Sullivan, in the Second Judicial District of Marion county, Mississippi, on the 8th day of July, A. D., 1889, by and in pursuance of a previous appointment and arrangement made to meet and engage in a prize-fight with another person, towit, with Jake Kilrain, did then and there, for a large sum of money, the exact amount of which is to the grand jurors aforesaid unknown, did then and there, to-wit, on the 8th day of July, 1889, in the Second Judicial District of Marion county, Mississippi, unlawfully engage in a prize-fight with the said Jake Kilrain, to-wit, did then and there enter a ring, commonly called a ‘prize-ring,' and did then and there, in the said ring, beat, strike and bruise the said Jake Kilrain, against the peace and dignity of the State of Mississippi. Jas. H. Neville, Dist. Atty."

This count is fatally defective as one charging the appellant with the offense of prize-fighting. The statute ueither defines the offense of prize-fighting, nor declares what act done shall be a violation of its provisions. The specific offense was unknown to the common law; the participants being only punishable for an affray, riot or assault and battery, according to the circumstances. In indictments for purely statutory offenses, it is sometimes sufficient to charge the offense by using only the words of the statute. This may be done whether language of the statute is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to any other acts than those made unlawful. Our statute against retailing (Code, § 1097) is an apt illustration of statutes of this character. It declares that "it shall not be law

ful for any person to sell any vinous or spirituous liquor in a less quantity than one pint, without having first obtained a license in the manner directed by this act." Here the nature and character of the prohibited act is clearly set out, and there is an exclusion of its application as to the only class of persons-licensed dealers -who may sell in the quantity named without guilt. But where the act prohibited does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the statute, it is not sufficient to indict by the use only of the statutory words. Under such circumstances, the indictment must charge, in apt language, the unlawful act, that the defendant may be advised of the nature and character of the offense with which he is charged, and that he may, by demurrer, take the opiniou of the court whether the facts charged constitute an offeuse.

In Jesse v. State, 28 Miss. 100, the defendant had been indicted under a statute which provided that “if any slave be guilty of burning any dwelling-house, store, cotton-house, gin, or outhouse, barn, or stable," etc. The indictment was in the words of the statute, and it was held insufficient for the reason that the statute was intended to punish a malicious burning only.

A statute declared that "if any clerk of any court, or public officer, or any other person, shall wittingly make any false entry, or erase any word or letter, or change any record belonging to any court or public office, whether in his keeping or not, he shall on conviction," etc. Code, 1880, § 2703. It was held that the purpose of the act was to prevent such change, erasure or false entry, to the end that some one might be thereby benefited or injured, as were intended or calculated to damuify some person, or benefit the person making it, and that an indictment which failed to aver such fact was fatally defective. Harrington v. State, 54 Miss. 490. The facts developed on the trial of that case disclosed that the defendant, a clerk of the treasurer, erased the number of a warrant that had been erroneously entered on the treasurer's books, and substituted the true number. These cases were decided on the ground that a person might, under circumstances, lawfully do the things forbidden in the most comprehensive manner by the mere letter of the statute. "A verdict (of a jury) does nothing more than verify the facts charged; and if these do not show the. party guilty, he cannot be considered as having violated the statute." Shaw, C. J., in Com. v. Odlin, 23 Pick. 275.

Where therefore the language of the statute is broader than its purpose, and the indictment is in the words of the statute, it cannot be told whether the jury intend to find the defendant guilty of the act forbidden by the statute, or of those only within its literal, but not its true, construction. It is therefore necessary for the pleader to depart from the statute, and indict in words aptly charging an offense, in all cases in which the words of the statute do not in legal intendment import a particular offense certainly committed by any one who has violated its literal language.

The statute under consideration declares, in general terms, that it shall be "unlawful for any persons to engage in prize-fighting in this State." What is a

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prize-fight" is not declared, but must be discovered by the courts from the known meaning of the terms used, and the evil intended to be provided against, The meaning of "to fight," according to Webster is "to strike or contend for victory, in battle or in single combat; to attempt to defeat, subdue, or destroy an enemy, either by blows or weapons," Worcester gives practically the same definition. Prize is defined by Worcester to be "a reward gained by contest or

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competition," and by Webster as "that which is obtained against the competition of others; any thing carried off as the result or award of a contest." Worcester defines "prize-fighter" as "one who fights or boxes publicly for a reward," and "prize-fighting" as "the act or the practice of fighting for a prize." Webster defines " prize-fighter" as "one who fights publicly for a reward," and "prize-fighting" as ". fighting, especially boxing, in public, for a reward or wager.' He defines "prize-fight" to be "a contest in which the combatants fight for a reward or wager." Worcester gives no definition of this word. It thus appears, that while these two lexicographers define a "prize-fighter" to be one who fights publicly, for a reward, Worcester defines "prize-fighting as the act of fighting for a prize, while Webster defines it as a fighting in public for a reward or wager, and "prize-fight" to be a contest in which the combatants fight for a reward or wager. According to the lexicographers, it would seem to be left doubtful whether, to constitute a prize-fight, there must be a fighting in public. We think however that the evil sought to be protected against by the statute is the debasing and brutalizing practice of fighting in public places, or places to which the public, or some part of it, is admitted as spectators. The act was not passed in tenderness to those who participate in such contests, nor to afford them protection by discourag ing the practice. We must either construe the act as prohibiting all contests, whether public or private, where a prize or wager is determined by blows, or as intended to apply only where others than the contestants are admitted spectators.

The second section of the act declares that if death result from the fight the party causing it shall be guilty of murder, or if mayhem results the punishment for that crime shall be inflicted. By the third section the aiders and abettors of such "prize-fighting" are declared guilty of a misdemeanor. These sections add strength to the conclusion, which would properly be drawn from the first only, that the prize-fighting intended to be prohibited is that which is public in character and tends to disturb the peace and quiet of the community in which it occurs, and to debase not only the participants, but others, who are admitted as spectators. A private contest between individuals, whether amateurs, or professional fighters or boxers, though it be for a prize or wager, would not be in violation of the particular statute under consideration, though the participants might be guilty of assault and battery, or of gaming. A fight or contest, under such circumstances, would be a fight because a contest determined by blows, and a prize-fight because a prize or wager would be awarded to the victor; but it would not be a prize-fight within the meaning of the statute, which prohibits such fights only as are offenses against public peace and order. Since therefore the appellant might fight for a prize under such circumstances as would not be violative of the statute, it is not sufficient to indict by the use of the statutory words only, but the facts which, if proved, show him to be guilty of the statutory offense must be charged.

The indictment is defective for another reason. The offense can only exist where two persons engage in the unlawful act. The parties are severally guilty, but the guilt of each springs from the joint unlawful act. One man cannot commit the offense. The indictment in this case does not follow the usual form, by charging that Sullivan and Kilrain fought together, and against each other. It avers that Sullivan, "in pursuance of a previous appointment and arrangement made to meet and engage in a prize-fight with Jake Kilrain, for a large sum of money, did unlawfully engage in a prize-fight with the said Jake Kilrain, to-wit, did then and there enter a ring, commonly called a 'prizering,' and did then and there, in said ring, beat, strike and bruise the said Kilrain, against the peace and

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dignity of the State of Mississippi." The clause preceding the videlicet, that Sullivan, unlawfully did engage in a prize-fight with the said Jake Kilrain," is the only portion of the indictment by which even an indirect charge is made that Kilrain did any thing in the fight; and the pleader excludes the conclusion that he did fight by setting out, under the videlicet, how Sullivan so engaged in a prize-fight, viz., by going into a prize-ring, and then and there beating Jake Kilrain. The common office of a videlicet is to state time, place or manner which are not of the essence of the matter in issue, and thereby to relieve the party of the duty of proving the allegation strictly as made; but it may be, and is frequently, used as particularizing the more general antecedent matter. "A videlicet,” says Lord Hobart, "is a kind of interpreter. Her natural and proper use is to particularize that that is before general." It may work a restriction when the former words are not express and special, but so indifferent as they may receive such restriction without apparent injury, though these former words, by con struction of law would have had a larger sense if the videlicet had not been. Stukeley v. Butler, Hob. 172; Dakin's Case, Saund. 291, note a. "If a party, in pleading, use a generic term, comprising therefore many species or particulars, and afterward use an averment defining which particular or species of the number he insists on, he is tied up to that particular one (The reason may be, because he leads his adversary to suppose he only means to rely on that, who therefore confines his proof (accordingly.) Harris v. Mantle, 3 Term R. 307; King v. Perrott, 2 Maule & S. 379." Com. Dig. "Pleader," C. 22. "Every indictment ought to be so framed as to convey to the party charged a certain knowledge of the crime imputed to him. If expressions are used which leave it in doubt whether all of several facts, or some only, are charged against him, subsequent averments must be used defining and tying up this generality." Com. Dig. "Pleader," C. 22.

In Mallett v. Stevenson, 26 Conn. 428, a warrant had issued commanding the officer to seize "certain intoxicating liquors, to-wit, several casks of French brandy, containing twenty-five gallons, more or less, several casks of gin, containing twenty-five gallons, more or less, and several casks of intoxicating wines, containing twenty-five gallons, more or less." The officer seized some French brandy, and also a quantity of rum, cider, brandy and pale brandy. It was held that the warrant did not justify the seizure of the latter articles. The court said: "Intoxicating liquors' is the name of a genus, of which brandy, gin, etc., are species; and although we agree with the judge who tried the cause that the particular species of liquor, when the species is unknown, need not be stated in the complaint or warrant, yet the objection in this case is, not that all the liquors seized were not desig nated by their specific names, but that the generic name 'intoxicating liquors,' was by the videlicet restricted to the species particularly described under it, so that no intoxicating liquors besides those desig nated by their specific names were complained of or proceeded against under any name, general or specific."

In Harris v. Mantle, 3 Term R. 307, breach of cove nant was assigned "that the defendant has not used a farm in an husbandlike manner, but on the contrary, has committed waste." Held, that plaintiff could not give in evidence defendant's unhusbandlike use, if it did not amount to waste.

Where the matter stated under the videlicet is immaterial, it may be rejected as surplusage. But where the precise time is the very point and gist of the cause, there the time alleged by the scilicet is conclusive aud traversible, and it shall be intended to be the true time, and no other, and if impossible or repuguant to

the premises, will vitiate the plea; if true, will support the defense. Blackstone, in argument in Bishop of Lincoln v. Wolferstan, 1 W. Bl. 495. "And the distinction seems equally to apply to every other matter which comes under the videlicet." Note to Dakin's Case, 2 Saund. 290b; 1 Bish. Crim. Proc., § 406.

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If the averment of the indictment had been that Sullivan and Kilrain fought together and against each other," the allegation under the videlicet might be referred to Sullivan's action in such fight. But as we have said, the antecedent clause only states that Sullivan fought with Kilrain, and the videlicet explains and particularizes the whole of the previous averment, by showing how he "fought with him." So read, the indictment is as though the pleader had said that Sullivan engaged in a prize-fight with Kilrain by going into a prize-ring, and there beating and bruising him. This avers the several act of Sullivan to constitute a prize-fight; and in the nature of things, that cannot be. As we have said, the parties in a prize-fight are severally guilty, but the guilt of each must arise from the joint act of two.

The present indictment illustrates the wisdom of the advice given by Mr. Bishop, "to have nothing to do with the videlicet, unless in exceptional circumstances."

The demurrer to the pleas in abatement should have been extended to the indictment, and the first count of the indictment quashed.

The judgment is reversed, the first count of the indictment quashed, and the appellant held to answer at the next term of the Circuit Court of Marion county, such indictment as may be preferred against him.

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PEOPLE, EX REL. STAPLETON, v. BELL.* Under the General Election Law of New York, title 4, article 2, section 7, which provides that each elector shall deliver his ballot to one of the inspectors, in presence of the board: that if challenged an inspector shall administer an oath to him, and ask him certain prescribed questions; and that if the challenge shall not be withdrawn the inspectors shall administer to the elector a general oath, in which he states in detail that he possesses all the legal and constitutional requirements; and that if he refuse to take such oath his vote shall be rejected-the inspectors being ministerial officers, have no discretionary power to reject the vote of an elector who has answered the statutory questions, and taken the prescribed oaths, even though he has failed to satisfy them as to his qualifications.

APPEAL from Supreme Court, General Term.

The relators and the defendants were the members of the board of inspectors of election appointed for the district of the city of Troy. The defendants refused to affix their signatures to the election returns, and these proceedings were instituted by the relators to compel them to perform that act. No issue is made as to any material allegation of fact in the moving papers; but the defendants allege that fraudulent personations of registered voters were made at the polls by non-resident and non-registered persons, and such votes were offered and were received over their objection. They admit that after such persons were challenged they were sworn, but say their "answers were unsatisfactory," and they allege that the "ballots were not received by said board, or by a majority thereof." A peremptory writ of mandamus was or dered at Special Term (7 N. Y. Supp. 701), and from *Affirming 8 N. Y. Supp. 254.

the order of the General Term affirming the proceedings the defendants have appealed to this court.

G. B. Wellington, for appellants.

R. A. Parmenter, for respondents.

GRAY, J. The record before us shows that the question which it presents has received a careful consideration in the courts below; and we might leave the discussion there if it were not a question which, as concerning the powers of inspectors of elections in holding State elections, affects the right of suffrage, and therefore is of public interest. The precise claim of the appellants amounts to this: that those officers are clothed with a discretionary power to reject the ballot tendered by a proposed elector, notwithstanding he may have satisfied the tests prescribed by law, by taking the oaths, and fully answering the questions put to him, if they doubt his identity with the registered elector, whose name he gives at the polls. In other words, that they may act, nevertheless, upon their own private opinions and knowledge. That claim arrogates to them judicial powers; and support for it must be found in the law regulating elections, either in express words or as implied from being necessarily incidental to the office, and to the proper exercise of its duties.

The right of suffrage is one of the most valuable and sacred rights which the Constitution has conferred upon the citizen of the State. About it have been erected many safeguards, with the object of securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and also of obtaining the greatest protection against the perpetration of frauds at the polls which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited and counted. It may properly be observed in this connection, that in addition to the legal requisites, the public nature of the proceedings, through which the elector entitles himself to cast a ballot, and the public manner in which he presents himself to cast it at the polls, are features in our elections which tend to minimize the possibility of false personations, and other fraudulent practices in elections. I think it would be a far greater menace to the security of this constitutional right if the law regulating its exercise might prevent the vote of a citizen, duly qualified to cast it, from being received and counted, than that some fraud might be practiced by a false personation; for in the one case there would be the disfranchisement of the elector, while in the other, for the wrong done to the people or to the individual, penalties and remedies are provided, and tribunals exist for their enforcement against a wrong-doer, and for the establishment of the right.

There are no complex features in this case, and it can be briefly stated. At the last general election in this State the two relators and the two defendants composed the board of inspectors of election; the former being the Democratic, and the latter the Republican, members thereof. After the closing of the polls the inspectors counted the ballots which had been cast, and the results of the counting were thereupon proclaimed. But to the election return, containing a statement of such results, the defendants refused to affix their signatures as required by law. In opposition to the application of the relators for an order compelling them to sign the return, the defendants objected, in substance, that fraudulent votes were received during the election from persons falsely personating registered voters, and who were not themselves registered; that upon their votes being offered their receipt was objected to, the "persons were challenged and sworn, and their answers were unsatisfactory;" that said ballots were not received by the

board, or by a majority thereof, but were taken and deposited by the relators in the ballot-boxes contrary to the protest of the defendants. It does not appear however that any minute or record was made of such attempts or objections, although the affidavit of the defendants states somewhat indefinitely that "at least seventy fraudulent votes were offered at the polls." The allegation was not put in issue by any denial, and we must take it to be true. The gravity of the offense cannot be overrated, and calls for the severest expressions of condemnation. Such practices are as dangerous to the rights of citizens as they are odious, and when suffered to go unnoticed and unpunished, reflect disgracefully upon the community. If unchecked by punishment, the electoral franchise is subjected to further attacks by dishonest partisans, emboldened by past immunity to themselves or others, to affect the result of elections by fraudulent personations and other devices. But we are confined in our discussion here to the legal question of what exercise of powers is permitted under the existing laws. We must assume that the person whose right to vote was challenged submitted to all the statutory tests prescribed by the law in such cases; for the appellants concede that he was "sworn," and only allege that his answers were unsatisfactory." They did not claim that his answers were not full, or that he was disabled by reason of any conviction. Their position is that they had knowledge that persons offered ballots who were not the registered electors they claimed to be, and were not registered at all; and their argument is, that notwithstanding those persons satisfied the statutory tests, such questions are always outstanding for the determination of the board, which only a majority can make.

I must say that to my mind this claim is as uureasonable as it is absolutely lacking in support in the fundamental or statutory law. It is repugnant to fundamental principles and to authority. I may fairly premise what brief discussion I may feel bound to enter upon in connection with the law regulating elections in this State with the remark that, if these appellants are right in their contention, then a way is made possible to perpetrate a great outrage upon the rights of electors. Under the present scheme of non-partisan boards of election inspectors, wherein the principal political parties in the State are intended to have equal representation, by a contumacious refusal of party adherents to sign an election return, based on the pretense that they were not satisfied in their minds that all of the ballots taken were cast by qualified and registered electors, the disfranchisement of all the electors in the election district could be effected. They could prevent the reception of a ballot from a proposed elector on their theory that a ballot is not finally received until by action of the majority of the board; for they would only have to oppose to the proofs required by the election law, and made by the person, their mental convictions, that notwithstanding them, he was not the elector he swore he was. I do not and cannot think such a result was ever intended, or can be fairly reached upon a consideration of the law. It is inconceivable that any such power should be lodged in election inspectors, or that they should be clothed with a discretion to reject a ballot offered by a proposed elector, whose qualifications, in case of challenge, are proved by the statutory methods.

The Constitution of the State provides that the citizen fulfilling the stated conditions of age, citizenship and residence, shall be entitled to vote at the election; and it is thereby left to the Legislature to enact laws excluding persons from the right of suffrage who have been convicted of bribery or infamous crime, and for ascertaining by proper proofs the electors who shall be entitled to exercise that right. The Legislature accordingly has enacted laws regulating the holding of

elections, and therein has provided, as a prerequisite to the right of the elector to vote, that he should be registered before the day for holding the election. Registration is the method of proof prescribed for ascertaining the electors who are qualified to cast votes, and the registers are the lists of such electors. It is a part of the machinery of elections, and is a reasonable regulation, which conduces to their orderly conduct and fairness. It is one safeguard against frauds; for it is a means for furnishing all the electors of the district with the knowledge of what persons will claim the right of voting a sufficient time in advance of the election for them to act upon it, if necessary. For the present purpose, I shall only refer to the chapter of election laws so far as portions of the laws bear upon the phase of the question under consideration.

The inspectors of election, in this particular case, were appointed by the board of police commissioners of the city of Troy under the provisions of a special law. When appointed they had, of course, such duties to perform as are mentioned in the general laws regulating the holding of elections. When the polls are open, the first duty imposed upon the inspectors is for one of their number to receive the ballot tendered; for the law provides (§ 7, art. 2, tit. 4) that each elector shall deliver his ballot "to one of the inspectors in the presence of the board." If then he shall be challenged as to his right to vote by an inspector, or by any other person entitled to object, an inspector shall tender him a preliminary oath, to the effect that he will "fully and truly answer" all questions touching his residence and qualifications as an elector. § 13. Thereupon questions of a certain prescribed nature are to be put to him, and all other questions tending to test his qualifications to vote. § 14. If he "shall refuse to take the preliminary oath when so tendered, or to answer fully any questions which shall be put to him, his vote shall be rejected." § 15. If he shall appear to the board, from his answers, to be deficient as to qualifications, it must be pointed out to him in what respect. § 16.

In the present case the only claim is that the answers after the persons were sworn, were not satisfactory. That certainly falls short of an allegation that full and true answers were not made. Of course, what is meant is, that while the answers were full, they did not satisfy or remove a doubt in the minds of the defendant inspectors as to the identity of the proposed electors. But as the statute only requires the oaths and full answers to questions, if the person does that much, these provisions of the law do not warrant the exercise of judicial powers, under which the inspectors can still assume,to deny the right of the proposed elector. But further, the law provides (§ 15) that "if the person 80 offering shall persist in his claim to vote, and the challenge shall not be withdrawn," the inspectors shall administer to him a general oath, in which he states in detail that he possesses all the constitutional and legal qualifications. This second or general oath is a clear indication of a lack of any discretionary power in inspectors to reject the vote of a person, even if he has failed to satisfy them as to his qualifications under the first oath prescribed. And it is provided, with respect to this latter oath (§ 19), that "if any person shall refuse to take the oath so tendered his vote shall be rejected." This is significant language, for it is equal to saying that if he does take the oath his vote shall be received. I think, that plainly enough, these provisions which have been referred to, in defining the cases where a vote shall be rejected, impliedly exclude any other case, and deprive the inspectors of any discretion in the premises. Article 3 of title 4 treats of the duties of the board of inspectors; and I find nothing there from which any such power can be implied as is here claimed. It is there made the duty of each inspector to challenge

every person offering to vote whom he shall know or suspect not to be duly qualified as an elector. § 31. But when he has done so he cannot do more than put in operation the test system or machinery described. And the statute makes it the inspector's duty to keep a minute of their proceedings in respect of the challenging and the administering of oaths, and to make return of it; but that does not appear to have been done here, either. § 22.

But a point is made upon the wording of section 28 of the third article of this General Election Law. It reads that "when the board shall have finally received the ballot of an elector" one of the inspectors shall deposit it, etc.; and it is argued, that to be "finally received by the board," its reception must be agreed to by a majority of the members. The argument does not seem to me a sound one. The board has no discretion to reject the vote of a person who has satisfied the statutory tests, and when that is done his vote must be deposited; and that is the time when, in legal contemplation, it is finally received. The language of the section is divested of its technical or literal meaning by force and operation of the context, and of the provisions in pari materia, which support and give reason for its existence. Where a voter is challenged there are several steps to be taken and things to be done, by the inspectors as well as by the voter, and which the statute had previously defined and commanded. So "finally " must be taken, obviously, to refer to the conclusion of the proceedings preliminary to the establishment of the voter's right to have his ballot received and deposited. In mentioning the "board," this section cannot be deemed to indicate united or majority action, if we are right in saying that they are ministerial officers, without the power of judging and deciding on their own opinions, when the voter has complied with the prescribed tests of the election law. Any inspector can deposit the ballot; and it is received in legal contemplation, by the board of inspectors, when, after the elector has delivered his ballot to one of the inspectors, he has overcome a challenge by satisfying the statutory tests. The inspector has held the ballot delivered to him, and after the tests are concluded it is then only legally deemed to be received. And how? Why, by force of the provisions of the act, as Chief Justice Denio says in People v. Pease, 27 N. Y. 45. If any thing was left by the law to the judgment of inspectors, then there would be some force in the argument that they, or a majority of them, should determine by vote upon the rights of the proposed elector. But to say that the right of the elector to cast a ballot is subject to board action is equivalent to saying that they have power to decide upon the evidence as to the lawfulness of the vote. That cannot be so. That would permit of an elector's rights being adjudged away, and himself disfranchised, and on only such evidence as the statute prescribes. The lawfulness of a vote cannot be determined until it has been received; and an elector's rights cannot be annulled without a trial, where he may have an opportunity of bringing forward his proofs, and having them passed upon in a proper way, and by a proper tribunal. To hold any other doctrine, we would have to disregard the spirit of our laws, and the fundamental idea of an electoral franchise. As was said by Mr. Justice Allen, who delivered the opinion at General Term in People v. Pease, 30 Barb. 595, "they cannot summon witnesses, or impanel a jury, or give the parties interested a hearing. They can examine the proposed elector upon his oath, and there their power and means of judicial investigation cease." That this is the general sense with respect to this language is further illustrated by a reference to the "Election Code," a compilation of election laws made, under the authority of a concurrent resolution of the Legislature, by the secretary of State. In section 704 it is said:

"When finally received by the board, either without challenge, or after a challenge has been so disposed of as to authorize the person offering the ballot to vote, it is required to be deposited by one of the inspectors, without being opened," etc. This direction does not contemplate action as a board literally; for if there is no challenge, certainly no such action would be called for. Then again, it speaks of a challenge being disposed of so as to authorize the person to vote, and says that one of the inspectors is required to deposit the ballot. Such language is indicative of a legal duty or obligation, and not of an exercise of discretion, and is one which any inspector may perform. I do not think the doctrine ought to receive encouragement from this or any other court.

I think we cannot hold otherwise, as to inspectors of elections, than that they are, under the provisions of the election law, made ministerial officers wholly; for their duties are pointed out by the law definitely. They are only officers to execute the law in a prescribed and definite way, and to whom no latitude is allowed when the proposed elector satisfies the statutory demands upon him for oaths, and answers to certain questions. They are bound to an exact obedience of the particular commands which the law has laid upon them as its officers, and they may not act on their own opinions or knowledge. The duty of an inspector is discharged when he has required the challenged voter to submit to the tests prescribed. In support of the view that inspectors of election act ministerially, and not judicially, in holding elections and making returns, we have ample authority. As far back as the case of Ashby v. White, 8 State Tr. 89, 130, Lord Chief Justice Holt's opinion was given upon the nature of a returning officer's office. That officer was a person to whom the instrument under which the election was immediately held was directed, and also was to make the return as to the vote. Steph. Elect. 74. A majority of the lords, in reversing the King's Bench, which had sustained the action of the returning officer in rejecting a vote, agreed with the opinion of Lord Holt as to the want of judicial capacity in a returning officer. It was held (p. 130): "That the officer is only ministerial in this case, and not a judge, nor acting in the judicial capacity, is most plain. His business is only to execute the precept to assemble the electors; to make the election, by receiving their votes, computing their numbers, declaring the election, and returning the persons elected."

In People v. Pease, 27 N. Y. 45, the judges were unanimous on the point that inspectors acted ministerially, Denio, C. J., who delivered a dissenting opinion on other questions in the case, disclaiming any reliance upon the judicial character of the inspectors, and remarking, that "if the inspector performs his duty by tendering and administering both oaths, the voter does not deposit his ballot by the permission or sufferance of the inspectors, in any legal sense, but by the provisions of the act." Judge Selden carefully discusses the question, and reviews authorities; and I think his views are most pertinent here. He said that inspectors "are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon their own opinion or knowledge." The registry act was not in existence when that case arose; but Judge Selden took occasion to say, with reference to it, that (p. 69) “if it had been it would not have changed the aspect of the present question. Its only effect in this respect is to require from the voter two oaths, instead of one; making the oath equally conclusive in each case." And in Goetcheus v. Matthewson, 61 N. Y. 420, the Commission of Appeals reaffirmed the doctrine of the ministerial nature of the inspector's office. Judge Cooley, in his work on Constitutional Limitations, *617, treating the

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