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

ssession in himself of all the legal qualifications, and if he take the oath, his vote must be received; the inspectors have no discretion in the matter; they can only reject the vote, if he refuses to answer the interrogatories put to him touching his qualifications, or to take the general oath. (People vs. Pease, 30 Barb., 588. 27 N. Y., 45.)

§ 503. In Bacon vs. Benchley, et al, (2 Cush., 100,) which was an action to recover damages against selectmen, for refusing to place the plaintiff's name on the list of voters, it appeared that the plaintiff was duly qualified, that he applied to the selectmen to place his name on the list, and that they refused the application. It further appeared, however, that afterward, and before the close of their session, the selectmen re-considered their refusal, and did place plaintiff's name on the list, but of this he was not informed. Held, that plaintiff could not recover, and that it was his duty to ascertain after the close of the "list," that his name was not on it, before he could hold the selectmen liable. This, for this reason, that the selectmen had the right to alter or correct the list, and to insert a name on it, up to the close of the session for revising. The Court was of opinion that the defendants did seasonably place the plaintiff's name on the list.

§ 504. We have already seen, that according to the decisions in Massachusetts, it is incumbent upon a person offering to vote to furnish to the selectmen sufficient evidence of his having the legal qualifications of a voter. It seems that where a voter before offering his vote, makes statements not under oath, to the selectmen, relating to his residence, in an ac

tion against such selectmen for refusing his vote, the plaintiff may prove that he made such statements, and what they were. (Lombard vs. Oliver and others, 7 Allen, 155.) But it would doubtless be otherwise if the plaintiff had been requested by the selectmen to make his statement under oath, and had not done so. In determining the question of a party's right to vote, the statements of such party concerning his residence, cannot be overlooked or disregarded, but the party must, if required, make oath to his statement.

§ 505. If a registered voter tenders his vote at an election, and the judges wilfully, corruptly and fraudulently refuse to receive it, he is entitled to recover in an action against them, such exemplary damages as the jury may consider proper under the circumstances. (Elbin vs. Wilson, 33 Md.) But in no case can a party recover exemplary damages unless wilful and corrupt action on the part of the officer charged, is proven, and indeed, (as we have already seen,) in most of the States, the officers of election are not liable at all-not even for actual damages—unless a corrupt purpose is shown. It was also held in the same case, that where the defendant claimed to have rejected plaintiff's vote upon the ground of his disloyal sentiments, it was proper for plaintiff to show that defendant, as register, had permitted another person, known to hold the same disloyal sentiments, to be registered as a voter. This was admittted as tending to show malice as against the plaintiff.

§ 506. And it was held in the same case, that in an action for damages against judges for corruptly

refusing the vote of the plaintiff, the fact that the defendants knew that plaintiff differed from them in his political sentiments is admissible as an element of proof to be considered by the jury together with other facts, to determine how far they were influenced by bias, prejudice, or corrupt motives in rejecting his vote. This ruling was probably correct, and yet such proof should have little or no weight, unless it appears from the acts, declarations, or conduct of the defendants, that they were not disposed to treat fairly and honestly the claims of a political opponent. The fact that the defendants and the plaintiff differed in politics standing alone, should be held as a fact of no moment. If it were otherwise the judges of an election would not be safe in deciding against the right of a political opponent to vote, except in the clearest case. It would destroy that independence that is requisite to judicial fairness.

§ 507. Where an officer of election has decided a difficult and doubtful question, against the right of a person claiming a vote, he will be deemed, until the contrary appears, to have acted without malice, even though his decision may have been erroneous. Thus, in New York, the inspectors refused the vote of a registered citizen, who had been challenged on the ground that he was a deserter from the U. S. military service, it appearing that by the act of Congress, deserters were rendered incapable of exercising the rights of citizens. In a suit against these inspectors for rufusing this vote, it was held that they were not liable without proof of malice notwithstanding the fact that the act of Congress was afterward construed to refer only to deserters who had been

properly convicted as such.

Goechens vs. Matthew

son, 5 Laws, N. Y., 214.)

CHAPTER XII.

OF THE ORGANIZATION AND POWERS OF LEGISLATIVE BODIES.

§ 508. Inasmuch as the failure of the legislative department of a government, (whether national, State, or municipal,) to organize and proceed regularly in the discharge of its duties, may prove a most grave and serious evil, it is important that the rules governing the organization of such bodies be defined as clearly as possible, and be adhered to and enforced with great strictness. It will be our purpose in this chapter, in the first place, to lay down at least the more important of these rules, and secondly, to speak briefly of the power of a legislative body over its members, and over other persons.

§ 509. It is to be observed in the outset that when a number of persons come together, each claiming to be a member of a legislative body, those persons who hold the usual credentials of membership, are alone entitled to participate in the organization. For it is, as we have had occasion several times to repeat, a well settled rule, that where there has been an authorized election for an office, the certificate of election, which is sanctioned by law or usage, is the prima facie written title to the office. (Kerr vs. Trego, 47 Pa. State Rep., 292.)