All that is ever required of an officer, so placed, whether a judicial or ministerial officer, _so far as is necessary to escape any imputations of crime_, is good faith.
Ministerial officers may be required, in some cases to act at their peril as to _civil_ responsibilities, but as to _criminal responsibilities_ never.
Inspectors of elections, however, _acting in good faith_, incur neither civil nor criminal responsibilities.
In _Jenkins vs. Waldron (11 John 114)_, which was an action on the case against inspectors of election for refusing to receive the vote of the plaintiff, a duly qualified voter, it was held, that the action would not lie _without proving malice_. Spencer, J., delivering the opinion of the Court, closes as follows: "It would in our opinion be opposed to all the principles of law, justice and sound policy, to hold that officers called upon to exercise their deliberate judgments, _are answerable for a mistake in law_, either civilly or criminally, where their motives are pure and untainted with fraud or malice."
The same point precisely was decided in a like case, in the Supreme Court of this State recently and _Jenkins vs. Waldron approved_.
Goetchens vs. Mathewson, 5 Lansing, 214.
In Harman v. Tappenden and fifteen others (1 East 555) the plaintiff was a freeman of the company of free fishermen and dredgermen of the manor and hundred of Faversham in Kent, and the defendants, as officers of the company, caused him "wrongfully, unlawfully and unjustly" to be disfranchised, and removed from his said office of freeman. He was restored by mandamus, and brought his action on the case against the defendants who removed him, to recover his damages.
On the trial before Lord Kenyon, C.J., a verdict was taken for the plaintiff for nominal damages, with leave to the defendant to move to enter a non-suit.
On that motion Lord Kenyon, C.J., said:
"Have you any precedent to show that an action of this sort will lie, without proof of malice in the defendants, or that the act of disfranchis.e.m.e.nt was done on purpose to deprive the plaintiff of the particular advantage which resulted to him from his corporate character? I believe this is a case of the first impression, where an action of this kind had been brought, _upon a mere mistake, or error in judgment_. The plaintiff had broken a by-law, for which he had incurred certain penalties, and happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which not making any answer, but refusing to pay them, the court proceeded, taking the offense _pro confesso_, without any proof, to call on him to show cause why he should not be disfranchised; and they accordingly made the order.
This was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motives to the persons making the order."
Lawrence, J., said: "There is no instance of an action of this sort maintained for an act merely from error of judgment. Perhaps the action might have been maintained, if it had been proved that the defendants"
contriving and intending to injure and prejudice the plaintiff, and to deprive him of the benefit of his profits from the fishery, which as a member of this body he was ent.i.tled to, according to the custom, had _wilfully and maliciously_ procured him to be disfranchised, in consequence of which he was deprived of such profits. But here there was no evidence of any wilful and malicious intention to deprive the plaintiff of his profits, or that they had disfranchised him with that intent, _which is necessary to maintain this action_. They were indeed guilty of an error in their proceedings to disfranchise him, in not going into any proof of the offence charged against him, but taking his silence as a confession. In the case of _Drewe v. Coulton_, where the action was against the Mayor of Saltash, who was returning officer, for refusing the plaintiff"s vote at an election, which was claimed in right of a burgage tenement; Wilson, J., nonsuited the plaintiff _because malice was not proved_; and he observed, that though Lord Holt, in the case of _Ashby v. White_, endeavored to show that the action lay for the obstruction of the right, yet the House of Lords, in the justification of their conduct, supposed to be written by the Chief Justice, puts it upon a different principle, the _wilfulness of the act_. The declaration in that case was copied from the precedent in _Milward v. Sargeant_, which came on in this court on a writ of error, _Hill 26, Geo. 3_, for refusing the plaintiff"s vote for the borough of Hastings. There the charge was "that the defendant contriving and wrongfully intending to injure and prejudice the plaintiff, and to hinder and deprive him of his privilege of voting, did not take or allow his vote." All which allegations Mr. Justice Wilson, in the case above alluded to, thought were essential to be proved in order to sustain the action."
"_Per Curiam._ Rule discharged."
The Reporter"s head note is: "An action does not lie against individuals for acts erroneously done by them _in a corporate capacity_ from which detriment has happened to the plaintiff. At least, not without proof of malice."
The case of _Drewe v. Coulton_ is given at length in a note to _Harman v. Tappenden and others 1 East 563_, and fully sustains what is said of it by Mr. Justice Lawrence.
The election was for member to serve in Parliament for the borough of SALTASH. The defendant was Mayor and returning officer. The question presented to him was "whether the owners of burgage tenements in the borough, had a right of voting, or whether that right was confined to the freemen of the corporation." The defendant had rejected the vote offered by the plaintiff, he claiming the right as a burgage tenant.
The action was for that refusal, charging the defendant with "contriving and wrongfully intending to deprive the plaintiff &c., obstructed and hindered him from giving his vote."
Wilson, J., among other things, says: "This is in the nature of it, an action for misbehavior by a public officer in his duty. Now I think, that it cannot be called a misbehavior, _unless maliciously and wilfully done, and that the action will not lie for a mistake in law_. The case of the bridge master is in point [Bul N.P. 64.]. It is there said, that an action on the case lies against a ministerial officer for _wilful_ misbehavior, as denying a poll for one who is a candidate for an elective office, such as bridge master &c." "In all the cases put, the misbehavior must be _wilful and by wilful_ I understand _contrary to a man"s own conviction_. Therefore I think from the opening of counsel, this is not a wilful refusal of the vote.... In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he is compelled to act. But the action lies where the officer has an option whether he will act or not. Besides, I think, that if an action were to be brought upon every occasion of this kind by every person whose vote was refused, it would be such an inconvenience as the law would not endure. A returning officer in such a case would be in a most perilous situation. _This gentleman was put in a situation where he was bound to act; and if he acted to the best of his judgment it would be a great hardship that he should be answerable for the consequences, even though he is mistaken in a point of law._ It was a very material observation of Mr. Gibbs, that the words of the resolution of the _House of Lords_ in _Ashby v. White_ followed the words of the statute of William III. For if that statute were declaratory of the common law, as it purports to be ["Be it enacted and declared that all false returns wilfully made" &c.] and an action would not lie at common law for a false return, unless the return be proved to have been made maliciously, as well as falsely, it should seem, by a parity of reasoning, that a person whose vote is refused by a returning officer, cannot maintain an action against him, unless the refusal _be proved to have been wilful and malicious_. And if malice were necessary before the statute by the common law, and since by the statute which is declaratory thereof, to sustain an action for a false return which includes perhaps the votes of all, it seems equally necessary in an action like the present where the injury complained of is to one only.
"I do not mean to say, that in this kind of action, it is necessary to prove _express_ malice. It is sufficient if malice may be implied from the conduct of the officer; as if he had decided contrary to a last resolution of the House of Commons. There _I should leave it to the jury to imply malice_. But taking all _the circ.u.mstances of this case together, malice can in no shape be imputed to the defendant. The plaintiff may have a right to vote, but that depends upon an intricate question of law, with respect to burgage tenures_; the right itself founded on ancient doc.u.ments and usages, and not acted upon for many years....
"_From these grounds, therefore, it cannot be inferred that the defendant has acted wilfully and maliciously in refusing the plaintiff"s vote; and unless that be so he is not liable in this action._
... "But without determining whether the statute be declaratory of the common law, or not; if not, the case rests on that of _Ashby v.
White_. Now all the debates and arguments in that case _go upon the malice_; and all those who have acted on that determination since have considered that the refusal must be _wilful and malicious_ in order to support the action....
"And in my opinion, it cannot be said, that because an officer is mistaken in a point of law, this action will lie against him.... It has also been said, that this is not like a case where a burdensome office is thrown upon a man, without his consent, wherein he is compellable to act; for that here the defendant has chosen to become a member of a corporation by which he had put himself in a situation to become a returning officer, and therefore that he is _bound to understand the whole law as far as it relates to his public situation, and is answerable for any determination he may make contrary to that law. But I much doubt whether that rule be generally true_; and in the present instance I am clearly of opinion that the want of malice is a full defense."
Lawrence, J., sat with Wilson.
The plaintiff was nonsuited and no new trial was moved for.
_Bernardiston v. Some_ (2 Lev. 114, 1 East. 586, note b.) was an action against the sheriff of Suffolk, charging that the defendant, intending to deprive him of the office of Knight of the Shire, made a double return. Upon a trial at bar, Twysden, Rainsford, and Wylie Js. held, and so directed the jury, that if the return was made _maliciously_, they ought to find for the plaintiff, which they did and gave him 800. On motion in arrest of judgment, Hale, C.J., being in court; he, Twysden & Wylie, Js. held that for as much as the return was laid to be _falso et malitiose et ea intentione_, to put the plaintiff to charge and expense, and so found by the jury, the action lay. Rainsford, J., doubted. But notwithstanding this charge of malice, judgment was reversed _in Cam scacc (vide 3 Lev. 30_) and that judgment of reversal was affirmed in Parliament. Lord Chief justice North"s first reason against the action was, because the sheriff as to declaring the Mayoralty is _judge_ and no action will lie against a judge for what he does judicially, though it should be laid _falso malitiose et scienter_. This reversal occasioned the pa.s.sage of the statute (7 and 8 W. III c. 7) which gives an action against the returning officer, for all false returns "wilfully made, and for double returns _falsely, wilfully and maliciously made_."
_Groenvelt v. Burwell & al_ (1 Salk. 396, S.C. 2 Ld Ray. 230, Comyns 76.) In this case, the Censors of the College of Physicians and Surgeons, in London, were empowered to inspect, govern and censure, all practices of physic in London--and to punish by fine and imprisonment.
They convicted the plaintiff of administering noxious medicines, and fined him 20, and imprisonment 12 months. Being taken in execution, he brought trespa.s.s against the Censors. It was held
1. That the Censors had judicial power.
2. That being judges of the matter, what they had adjudged was not traversable. That the plaintiff could not be permitted to gainsay, what the Censors had said by their judgment--that the medicines were noxious.
3. Though the medicines were really good, yet no action lies against the Censors, because it is a wrong judgment in a matter within the limits of their jurisdiction; and a judge is not answerable, either to the King or the party, for the mistakes or errors of his judgment in a matter of which he has jurisdiction; It would expose the justice of the nation, and _no man would execute the office upon peril of being arraigned by action or indictment for every judgment he p.r.o.nounces_.
All that I have quoted from the English cases and our own to show that _malice_ must be proven to make out the offense, _is expressly contained in the_ statute under which this indictment is framed. The words are (Sec. 19) "shall knowingly and _wilfully_ receive the vote of any person not ent.i.tled to vote." (And Section 20 as amended) "If any such officer shall knowingly and _wilfully_ register, as a voter any person not ent.i.tled to vote."
And wilfully means, to use the language of Mr. Justice Wilson, "_contrary to a man"s own conviction_."
If it be said that the defendants must be presumed to know the law, that is answered above by the quotations from the opinion of Mr. Justice Wilson.
Besides when the statute speaks of "knowledge," aside from the expression "wilfully" it means _knowledge_ as a _fact_--not any _forced presumption of knowledge_ against the clear facts of the case.
To this extent and _to this extent only_, does the presumption that defendants were bound to know the law go, viz: They were bound to know that if they _as a fact_ "knowingly and wilfully registered as a voter any person not ent.i.tled to be registered" or "knowingly and wilfully received the vote of any person not ent.i.tled to vote," in either case they were liable to the penalty; and they could not be allowed to urge in their defense any ignorance that _the law made those facts criminal_.
Here is a total absence of any pretence of malice. The defendants acted honestly and according to their best judgment. This is conceded. The most that can be said against them is, that they have erred in judgment.
They are not lawyers, nor skilled in the law. They had presented to them a legal question which, to say the least, has puzzled some of the ablest legal minds of the nation. The penalty is the same, on which ever side they err. If they can be convicted of crime, a test must be imposed upon them, which no judge in the land could stand.
The defendants should be discharged by this Court.
Mr. Crowley then rose to make his argument, when the Court said:
THE COURT: I don"t think it is necessary for you to spend time in argument, Mr. Crowley. I think upon the last authority cited by the counsel there is no defense in this case. It is entirely clear that where there is a distinct judicial act, the party performing the judicial act is not responsible, civilly or criminally, unless corruption is proven, and in many cases not when corruption is proven.
But where the act is not judicial in its character--where there is no discretion--then there is no legal protection. That is the law, as laid down in the authority last quoted, and the authority quoted by Judge Selden in his opinion. It is undoubtedly good law. They hold expressly in that case that the inspectors are administrative officers, and not judicial officers.
Now, this is the point in the case, in my view of it: If there was any case in which a female was ent.i.tled to vote, then it would be a subject of examination. If a female over the age of 21 was ent.i.tled to vote, then it would be within the judicial authority of the inspectors to examine and determine whether in the given case the female came within that provision. If a married woman was ent.i.tled to vote, or if a married woman was not ent.i.tled to vote, and a single woman was ent.i.tled to vote, I think the inspectors would have a right in a case before them, to judge upon the evidence whether the person before them was married or single. If they decided erroneously, their judicial character would protect them. But under the law of this state, as it stands, under no circ.u.mstances is a woman ent.i.tled to vote. When Miss Anthony, Mrs.
Leyden and the other ladies came there and presented themselves for registry, and presented themselves to offer their votes, when it appeared that they were women--that they were of the female s.e.x--the power and authority of the inspectors was at an end. When they act upon a subject upon which they have no discretion, I think there is no judicial authority. There is a large range of discretion in regard to the votes offered by the male s.e.x. If a man offers his vote, there is a question whether he is a minor--whether he is 21 years of age. The subject is within their jurisdiction. If they decide correctly, it is well; if they decide erroneously, they act judicially, and are not liable. If the question is whether the person presenting his vote is a foreigner or naturalized, or whether he has been a resident of the state or district for a sufficient length of time, the subject is all within their jurisdiction, and they have a right to decide, and are protected if they decide wrong.
But upon the view which has been taken of this question of the right of females to vote, by the United States Court at Washington, and by the adjudication which was made this morning, upon this subject there is no discretion, and therefore I must hold that it affords no protection.
In that view of the case, is there anything to go to the jury?
MR. VAN VOORHIS: Yes, your Honor.
THE COURT: What?
MR. VAN VOORHIS: The jury must pa.s.s upon the whole case, and particularly as to whether any ballots were received for representative in Congress, or candidates for representative in Congress, and whether the defendants acted wilfully and maliciously.
THE COURT: It is too plain to argue that.
MR. VAN VOORHIS: There is nothing but circ.u.mstantial evidence.
THE COURT: Your own witness testified to it.