Opinion of the Court.

competent to prove the disqualifications of the voters, but not to prove how they voted; and there being no evidence how they voted other than their own declarations, the six votes were counted.

It is the established practice of legislative bodies, upon inquiries as to the election of members thereof, to receive in evidence the declarations of voters as to their disqualifications. The case of The People v. Pease is one which gives some judicial sanction to such a practice in courts of justice. The decision there was by a divided court, the main controversy in the case being, whether the decision of the inspectors of elections, in receiving the ballots of voters, was conclusive, or whether it was competent for the court to go behind the ballot-box and inquire into the qualifications of the voters.

The opinions on the part of the majority of the court were delivered by Justices Davies and Selden. The former, in the course of his opinion, says: "In the case at bar, the disqualification was proven by the voter himself; but these authorities (referring to parliamentary election cases, and the note to 3 McCord Rep. 230, and 2 Cow. & Hill's Notes, 322) abundantly sustain the position that the declaration of the voter, as to his want of qualification, would have been admissible and legal evidence." The only declarations of the voters in that case, were those made by themselves while on the stand and under oath, so that the opinion in this respect, of the declarations out of court, of voters, appears to be upon a point not before the court. In the opinion of Mr. Justice Selden, there is nothing in support of this language on the subject of hearsay evidence.

The authority of this case, as regards the main point which was in controversy in it, was repudiated by the Supreme Court of Michigan in The People v. Cicott, 16 Mich. 296; and, so far as the decision slightly goes in that direction, would rather seem to be adverse as to receiving declarations of voters.

State v. Olin, 23 Wis. 311, sustains the rule as contended for by appellants, that the declarations of voters are receivable

Opinion of the Court.

in evidence, both of their want of qualification and of how they voted. It is to be observed, in reference to this case, that the voters were placed upon the stand, and there refused to testify, upon the ground that their evidence might tend to criminate themselves. On the contrary, the doctrine is expressly repudiated in the case of Gilliland v. Schuyler, 9 Kan. 569.

This practice with legislative bodies of receiving in evidence the declarations of voters, has, at best, not as yet received more than a limited judicial sanction in courts of justice. It is, apparently, contrary to legal principle, as being the reception of hearsay evidence. The ground of the admission of such testimony seems to be that stated by Mr. Thesiger, (afterwards Lord Chancellor,) in a case before the election committee of the House of Commons in England: "A voter who has voted for the sitting member, is always considered as a party, and it is on that ground that his declarations are admissible. The question is always considered to be between the voter and the party questioning his vote, and not merely between the sitting member and the petitioner." Fale & Fitzh. Election Cases, p. 72. Considering the voter as a party, then it consists with legal principle to receive in evidence his declarations against himself, under the rule that the declarations of a party to the record are, as against such party, admissible in evidence. But this is on the ground of their being declarations against the interest of the party, and therefore probably true. But the declarations of a party are never receivable for, but only against him. The difficulty in the reception of these declarations here, is, it does not appear by any legal evidence that they were against; they may have been in favor of the parties who made them. The poll-books show that these persons voted; that is all. The ballots of Lancaster precinct being lost, there is no evidence whatever how these persons voted, except their own declarations afterward, offered in evidence. They were not, themselves, placed upon the stand; no effort was made to get their testimony,

Opinion of the Court.

and no reason shown why it could not be got; but third persons are placed upon the stand who testify that these absent voters, after the election had passed, admitted that they were not legal voters, and that they had voted "for removal."

We think there should be some legal evidence that they voted "for removal," before their declarations, not under oath, are admissible in evidence. May be they voted "against removal." If they did so, then, admitting these declarations -the voters being considered as parties-would be receiving in evidence the declarations of a party in his own favor. Could they, by their unsworn statements of their disqualification, and that they voted for removal, cause six votes "for removal" to be stricken out, then they would, in effect, double their vote "against removal."

The reception of such statements, as evidence how these voters cast their votes, would, in our view, under the circumstances of this case, be inconsistent with legal principle, and dangerous in tendency in opening a door to fraud.

There being, then, no evidence as to how these six voters in Lancaster precinct voted, other than their own declarations afterward, made without the sanction of an oath, we are of opinion the court below did right in not rejecting their votes, notwithstanding their declarations of disqualification as voters, and that they voted "for removal."

Three persons were counted for removal, and the ballots disclosed that they so voted; each one, however, testified that he voted against removal. Nothing more than that is disclosed or claimed, of any fraud or mistake. Appellants insist that the will of the electors should be carried out, and the so-called mistake be corrected.

We know of no precedent or principle for such a proceeding. The intention of the elector can not be thus inquired into when it is opposed to the paper ballot which he has deposited in the ballot-box. That is to prevail as the highest evidence of his intention. The People v. Seaman, 5 Denio,

Syllabus.

409; The People v. Saxton, 22 N. Y. 309. Were there independent proof of fraud, a different question would be presented.

In the rulings of the court below against appellants, in respect of matters of law, we find no error.

As regards matters of fact, a great number of findings in respect thereto, on both sides, in the admission and rejection of individual votes, as well as in passing upon the legal qualifications as voters, of such in the county who did not vote, all of whom, under the statute, are to be counted against removal, are complained of as being erroneous.

To review the cases in detail would be tedious, and serve no useful end, and we shall undertake no more than to state the conclusion. We find a number of cases on each side where we would be inclined to find differently from the court below in the admission and rejection of individual votes ; but, upon a balancing thereof, the one against the other, on the respective sides, we fail to find an excess of erroneous rulings against appellants large enough to overcome the majority of votes in favor of removal, found by the decree.

Upon consideration of the whole case, we are satisfied the election was fairly carried by a majority of all the legal voters of the county, and perceive no sufficient reason to disturb the decree. It will therefore be affirmed.

Decree affirmed.

Mr. CHIEF JUSTICE WALKER: I hold that those who were of foreign birth and minors, at the adoption of the constitution of 1848, never became voters under that instrument.

FERGUS WHALIN

v.

THE CITY OF MACOMB.

1. STATUTE when directory only. Where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed or the language used by the 4-76TH ILL.

Statement of the case.

legislature shows that the designation of the time was intended as a limitation of the power of the officer.

2. Where the charter of a city required the city authorities to publish a digest of its ordinances within one year after the grant of the charter, and every five years thereafter, it was held, in a suit by the city for the violation of an ordinance, that this requirement was only directory, and a neglect to observe it presented no ground for defeating a recovery.

3. ORDINANCE-right to recover under not defeated because act was a breach of party's bond. In a suit by a city to recover the penalty fixed by ordinance, for selling liquors contrary to the terms of his license, it is no defense that the defendant is liable to the city on his license bond for the same act, the ordinance prescribing that the penalties thereby imposed might be recovered in an action of debt, or as damages in a suit on the bond. The fact that the acts complained of were breaches of the bond, makes them none the less violations of the ordinance.

4. CHARTER-forfeiture, how questioned. Whether a city has forfeited its charter, can only be raised in a direct proceeding by scire facias or quo warranto. The question can not be raised in a suit for a violation of its ordinances.

APPEAL from the Circuit Court of McDonough county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.

This was a prosecution, by the city of Macomb against Fergus Whalin, a licensed saloon keeper, for selling liquor contrary to the ordinance of the city regulating such sales by licensed persons. The suit was originally brought before a justice of the peace, and taken to the circuit court by appeal. Section seven of the ordinance under which the suit was brought, is as follows:

"Any person or persons who have obtained a license to keep a grocery under the provisions of this ordinance, as aforesaid, and shall fail or neglect to keep a quiet, orderly and well governed house, or shall knowingly suffer or permit gaming in or about his grocery, or shall fail, neglect or refuse to keep his grocery closed at all hours on Sunday, or who shall open his grocery or cause the same to be done before 4 o'clock A. M., or who shall keep his grocery open, or cause, suffer or permit it to be kept open, after forty-five minutes past 9 o'clock P. M., railroad time, or who shall sell