number of votes, but as to the other office there had been a failure to hold an election.1 The Freedom of Elections. To keep every election free of all the influences and surroundings which might bear improperly upon it, or might impel the electors to cast their suffrages otherwise than as their judgments would dictate, has always been a prominent object in American legislation. We have referred to fundamental principles which protect the secrecy of the ballot, but in addition to these there are express constitutional and statutory provisions looking to the accomplishment of the same general purpose. It is provided by the constitutions of several of the States that bribery of an elector shall constitute a disqualification of the right to vote or to hold office; the treating of an elector, with a view to influence his vote, is in some States made an indictable offence; courts are not allowed to be held, for the two reasons, that the electors ought to be left free to devote their attention to the exercise of this high trust, and that suits if allowed on that day [* 615] might be used as a means of intimidation; legal process 1 People v. Kent County Canvassers, 11 Mich. 111. * See the Constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Arkansas, Rhode Island, Alabama, Florida, New York, Massachusetts, New Hampshire, Vermont, Nevada, Tennessee, Connecticut, Louisiana, Mississippi, Ohio, Wisconsin. And it has been held on general principles that if an elector is induced to vote in a particular way by the payment or promise of any money or other valuable consideration for such vote, his vote should be rejected as illegal. State v. Olin, 23 Wis. 327. The power to reject for such a reason, however, is not in the inspectors, but in the court in which the right to try the title to the office is vested. State v. Purdy, 36 Wis. 213; s. c. 17 Am. Rep. 485. In this case it was held to be a sufficient reason for the court to reject votes, that they were obtained by means of the candidate's promise to perform the duties of the office for less than the official salary. Mr. 8 State v. Rutledge, 8 Humph 32. And see the provision in the Constitution of Vermont on this subject. A resort to this species of influence would generally, at the present time, prejudice the candidate's interests instead of advancing them, but such has not always been the case. Madison, after performing valuable service for the State in its legislature, was defeated when offering himself for re-election, in the very crisis of the Revolution, by the treating of his opponent. See his Life by Rives, Vol. I. p. 179. 4 But it was held in New York that the statute of that State forbidding the holding of courts on election days did not apply to the local elections. in some States, and for the same reasons, is not permitted to be served on that day; intimidation of voters by threats or otherwise is made punishable; 1 and generally all such precautions as the people in framing their organic law, or the legislature afterwards, have thought might be made available for the purpose, have been provided with a view to secure the most completely free and unbiassed expression of opinion that shall be possible. Betting upon elections is illegal at the common law, on grounds. of public policy; 2 and all contracts entered into with a view improperly to influence an election would be void for the same reason. And with a just sense of the danger of military inter Matter of Election Law, 7 Hill, 194; Redfield v. Florence, 2 E. D. Smith, 339. 1 As to what shall constitute intimidation, see Respublica v. Gibbs, 3 Yeates, 429. 2 Bunn v. Riker, 4 Johns. 426; Lansing v. Lansing, 8 Johns. 454; Ball v. Gilbert, 12 Met. 397; Laval v. Myers, 1 Bailey, 486; Smyth v. McMasters, 2 Browne, 182; McAllister v. Hoffman, 16 S. & R. 147; Stoddard v. Martin, 1 R. I. 1; Wroth v. Johnson, 4 H. & M. 284; Tarelton r. Baker, 18 Vt. 9; Davis v. Holbrook, 1 La. Ann. 176; Freeman v. Hardwick, 10 Ala. 316; Wheeler v. Spencer, 15 Conn. 28; Russell v. Pyland, 2 Humph. 131; Porter v. Sawyer, 1 Harr. 517; Hickerson v. Benson, 8 Mo. 8; Machir v. Moore, 2 Grat. 257; Rust v. Gott, 9 Cow. 169; Brush v. Keeler, 5 Wend. 250; Fisher v. Hildreth, 117 Mass. 558; McCrary, Law of Elections, § 149. 8 In Jackson v. Walker, 5 Hill, 27, it was held that an agreement by the defendant to pay the plaintiff $1000, in consideration that the latter, who had built a log cabin, would keep it open for political meetings to further the success of certain persons nominated for members of Congress, &c., by one of the political parties, was illegal within the statute of New York, which prohibited contributions of money for any other purpose in tended to promote the election of any particular person or ticket, except for defraying the expenses of printing and the circulation of votes, handbills, and other papers." This case is criticised in Hurley v. Van Wagner, 28 Barb. 109, and it is possible that it went further than either the statute or public policy would require. In Nichols v. Mudgett, 32 Vt. 546, the defendant being indebted to the plaintiff, who was a candidate for town representative, the parties agreed that the former should use his influence for the plaintiff's election, and do what he could for that purpose, and that if the plaintiff was elected, that should be a satisfaction of his claim. Nothing was specifically said about the defendant's voting for the plaintiff, but he did vote for him, and would not have done so, nor favored his election, but for this agreement. The plaintiff was elected. Held, that the agreement was void, and constituted no bar to a recovery upon the demand. See also Meachem v. Dow, 32 Vt. 721, where it was held that a note executed in consideration of the payee's agreement to resign public office in favor of the maker, and use influence in favor of the latter's ap pointment as his successor, was void in the hands of the payee. See also Duke v. Ashbee, 11 Ired. 112; MeCrary, Law of Elections, § 192. In Pratt v. People, 29 Ill. 54, it was held ference, where a trust is to be exercised, the highest as well as the most delicate in the whole machinery of government, it has not been thought unwise to prohibit the militia being called out on election days, even though for no other purpose than for enrolling and organizing them. The ordinary police is the peace force of the State, and its presence suggests order, individual safety, and public security; but when the military appear upon the stage, even though composed of citizen militia, the circumstances must be assumed to be extraordinary, and there is always an appearance of threatening and dangerous compulsion which might easily interfere seriously with that calm and unimpassioned discharge of the elector's duty which the law so justly favors. The soldier in organized ranks can know no law but such as is given him by his commanding officer; and when he appears at the polls, there is necessarily a suggestion of the presence of an enemy against whom he may be compelled to exercise the most extreme and destructive force; and that enemy must generally be the party out of power, while the authority that commands the force directed against them will be the executive authority of the State for the time being wielded by their opponents. It is consequently of the highest importance that the presence of a military force at the polls be not suffered except in serious emergencies, when disorders exist or are threatened for the suppression or prevention of which the ordinary peace force is insufficient; and any statute which should provide for or permit such presence as a usual occurrence or except in the last resort, though it might not be void, would nevertheless be a serious invasion of constitutional right, and should not be submitted to in a free government without vigorous remonstrance.2 that an agreement between two electors that they should "pair off," and both abstain from voting, was illegal, and the inspectors could not refuse to receive a vote of one of the two, on the ground of his agreement. 1 See Hyde v. Melvin, 11 Johns. 521. 2 The danger, and we may say also, the folly of military interference with the deliberations or action of electors except in the last necessity, was fearfully illustrated in the case of the "Manchester Massacre," which occurred in 1819. An immense meeting of radical parliamentary reformers, whose objects and purposes appeared threatening to the government, was charged upon by the military, with some loss of life, and with injury to the persons of several hundred people. As usual in such cases, the extremists of one party applauded the act and complimented the military, while the other party was exasperated in the last degree, by what seemed to [* 616] * The Elector not to be deprived of his Vote. That one entitled to vote shall not be deprived of the privilege by the action of the authorities, is a fundamental principle. It has been held, on constitutional grounds, that a law creating a new county, but so framed as to leave a portion of its territory unorganized, so that the voters within such portion could not participate in the election of county officers, was inoperative and void. So a law submitting to the voters of a county the question of removing the county seat is void if there is no mode under the law by which a city within the county can participate in the election.2 And although the failure of one election precinct to hold an election, or to make a return of the votes cast, might not render the whole election a nullity, where the electors of that precinct were at liberty to vote had they so chosen, or where, having voted but failed to make return, it is not made to appear that the votes not returned would have changed the result,3 yet if any action was required of the public authorities preliminary to the election, and that which was taken was not such as to give all the electors the opportunity to participate, and no mode was open to the electors by which the officers might be compelled to act, it would seem that such neglect, constituting as it would the disfranchisement of the excluded electors pro hac vice, must on general principles render the whole election nuga them an unnecessary, arbitrary, and unconstitutional exercise of force. The most bitter and dangerous feeling was excited throughout the country by this occurrence, and it is not too much to say that if disorders were threatening before, the government had done nothing in this way to strengthen its authority, or to insure quiet or dispassionate action. No one had been conciliated; no one had been reduced to more calm and deliberate courses; but, on the other hand, even moderate men had been exasperated and inclined to opposition by this violent, reckless, and destructive display of coercive power. See Han sard's Debates, Vol. XLI. pp. 4, 51, 230. 1 People v. Maynard, 15 Mich. 471. For similar reasons the act for the organization of Schuyler County was held invalid in Lanning v. Carpenter, 20 N. Y. 477. 2 Attorney-General v. Supervisors of St. Clair, 11 Mich. 63. For a similar principle see Foster v. Scarff, 15 Ohio, N. s. 532. 8 See Ex parte Heath, 3 Hill, 42; Louisville and Nashville R. R. Co. v. County Court of Davidson, 1 Sneed, 637; Marshall v. Kerns, 2 Swan, 68; Beardstown v. Virginia, 76 Ill. 34. tory; for that cannot be called an election or the expression of the popular sentiment where a part only of the electors have been allowed to be heard, and the others, without being guilty of fraud or negligence, have been excluded.1 If the inspectors of elections refuse to receive the vote of an elector duly qualified, they may be liable both civilly and criminally for so doing: criminally, if they were actuated by improper and corrupt motives; and civilly, it is held in some of the States, even though there may have been no malicious design in so doing; 2 but other cases hold that, where the inspec- [* 617] tors are vested by the law with the power to pass upon the qualifications of electors, they exercise judicial functions in so doing, and are entitled to the same protection as other judicial officers in the discharge of their duty, and cannot be made liable except upon proof of express malice. Where, however, by the law under which the election is held, the inspectors are to receive the voter's ballot, if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the oath, or to refuse the vote after the oath 1 See Fort Dodge v. District Township, 17 Iowa, 85; Barry v. Lauck, 5 Cold. 588. In People v. Salomon, 46 Ill. 415, it was held that where an act of the legislature, before it shall become operative, is required to be submitted to the vote of the legal electors of the district to be affected thereby, if the election which is attempted to be held is illegal within certain precincts containing a majority of the voters of the district, then the act will not be deemed to have been submitted to the required vote, and the result will not be declared upon the votes legally cast, adverse to what it would have been had no illegality intervened. 2 Kilham v. Ward, 2 Mass. 236; Gardner v. Ward, 2 Mass. 244, note; Lincoln v. Hapgood, 11 Mass. 350; Capen v. Foster, 12 Pick. 485; Gates v. Neal, 23 Pick. 308; Blanchard v. Stearns, 5 Met. 298; Jeffries v. Ankeny, 11 Ohio, 372; Chrisman v. Bruce, 1 Duvall, 63; Monroe v. Collins, 17 Ohio, N. s. 665; Gillespie v. Palmer, 20 Wis. 544. 8 Jenkins v. Waldron, 11 Johns. 114; Wecherley v. Guyer, 11 S. & R. 35; Gordon v. Farrar, 2 Dougl. (Mich.) 411; Peavey v. Robbins, 3 Johns. L. 339; Caulfield v. Bullock, 18 B. Mon. 494; Miller v. Rucker, 1 Bush, 135; Chrisman v. Bruce, 1 Duv. 63; Wheeler v. Patterson, 1 N. H. 88; Turnpike v. Champney, 2 N. H. 199; Rail v. Potts, 8 Humph. 225; Bevard v. Hoffman, 18 Md. 479; Elbin v. Wilson, 33 Md. 135; Friend v. Hamill, 34 Md. 298; Pike v. Megoun, 44 Mo. 492; see State v. Daniels, 44 N. H. 383, and Goetcheus v. Mathewson, 61 N. Y. 420. In the last case the whole subject is fully and carefully examined, and the authorities analyzed. Compare Byler v. Asher, 47 Ill. 101; Elbin v. Wilson, 33 Md. 135. |