The case of Zeiler v. Chapman, went so far as to decide that a rejection of registered voters by the judges of an election will be presumed to have been made rightly until the contrary is shown.1

Pike v. Magoun, decided that registering officers are not liable in damages for erroneously refusing to register a voter, but that they are for corrupt or malicious refusal.2 And Elbin v. Wilson, applies the same test to election judges who refuse to receive the ballot of a registered voter.3

There are several cases in which a distinction is drawn between criminal prosecutions and civil suits against an election officer for rejecting the vote of a qualified elector, and holding that, in suits of the latter character, malice nor corruption need not be proved in order to maintain an action. It was very justly observed by the court, in Lincoln v. Hapgood, supra, that the decision of the election officer being final and conclusive, an injury is done not only to the individual but to the whole community, when a lawful vote is shut out, the theory of our government requiring that a majority of qualified citizens, choosing to exercise the privilege of voting, shall elect, and unless a citizen obstructed in the enjoyment of the right can maintain his action without proving

1. 54 Missouri, 502.

2. 44 Missouri, 492.

3. 33 Maryland Reports.

4. Killiam v. Ward, 2 Mass., 236; Henshaw v. Foster, 9 Pick., 312; Gates v. Neal, 23 Pick., 308; Jeffries v. Anthony, 11 Ohio, 372; Anderson v. Milliken, 9 Ohio St. R., 568; Gillespie v. Palmer, 20 Wis., 544.

malice, he may be entirely shut out from judicial investigation. It is impossible to look into the human breast to explore motives and intentions, and, in the absence of any circumstance from which motive may be inferred, it cannot be proved. In criminal prosecutions, malice being a necessary ingredient of the crime, proof of it is necessary, but the injury to the right of suffrage is complete when the voter's ballot is rejected, whether done with malice or not. In Gates v. Neal,1 the court said, that without the right to maintain an action, irrespective of malice, "a voter might often be refused his privilege upon slight and frivolous grounds, but yet under such circumstances as to render it difficult, if not im possible, to prove actual malice in the officer superintending the elections."

In Blanchard v. Storms, 5 Metcalf, 298, the court, while adhering to the doctrine of the other Massachusetts cases, ruled that, in an action against an election officer, the plaintiff must prove, as a part of his case, that he furnished the defendant with evidence that he was a legal voter before his vote was refused. This rule of evidence, making proof from which wilfullness on the part of the election officer may be inferred, necessary to the maintenance of an action, is a near approach to the doctrine held in the majority of states, and shows a tendency in that direction by the court which originated\ the opposite doctrine.

1. Supra.

CHAPTER XI.

BRIBERY AND CORRUPTION.

Bribery as a Cause for Disfranchisement.

It is the design of the elective system, and essential to its successful operation, that elections shall be pure as well as free, and legislative ingenuity has been exhausted in devising laws to prevent and punish all practices intended or having a tendency to make the ballot express anything but the independent, untrammeled and honest opinion of the voter. That these laws are evaded, and that corruption in its various forms is a growing evil, is not the fault of the framers of our state constitutions, of legislators, or of the courts.

The constitutions of several of the states contain provisions making bribery a cause for disfranchisement,the severest penalty that can be visited upon a freeman,— or empowering the legislature to do so, which power has in most cases been exercised. The reader is referred to the chapter on state constitutions, in which he will find clauses providing that conviction for bribery shall or may forfeit the right of an elector in the following states: Alabama, (Ante page 59); California, (page 49); Con

necticut, (page 25); Delaware, (page 37); Florida, (page 68); Georgia, (page 52); Kansas, (page 36); Kentucky, (page 53); Louisiana, (page 56); Maryland, (page 39); Mississippi, (page 58); Missouri, (page 46); New Jersey, (page 30); New York, (page 27); Ohio, (page 31); Oregon, (page 34); Pennsylvania, (page 41); Rhode Island, (page 20); Tennessee, (page 54); Texas, (page 66); Virginia, (page 43); West Virginia, (page 61.)

In the states in which the legislature is not empowered to make disfranchisement the penalty for bribery, there are statutes making it a misdemeanor, punishable by fine and imprisonment. Some of these laws are remarkable for their comprehensiveness in defining of what bribery shall consist, and all of them include every indirect inducement, in the way of gift or promise of reward, and every manner of influence which operates upon the ambition, greed or appetite of the voter, as within the definition of bribery.

In most of the states a conviction for bribery disqualifies from holding any office of honor, profit or trust. In states where this is not imperative, it is provided by statute that any candidate who is guilty of bribery shall forfeit the office. Kansas, Ohio, Wisconsin and Pennsylvania are examples. In the last named state the constitution provides, that any candidate for office who commits bribery, shall be disfranchised for four years. Others guilty of the offence, upon being challenged, lose the right to vote at the election which the bribery was intended to affect.

To preclude the voter from having any other than a public interest in the result of an election, betting upon it, or making any contingent gain or loss, advantage or disadvantage dependent upon the result, is forbidden. and is discountenanced by the courts.

A case in 36 Wisconsin Reports illustrates the extent to which the courts go in discountenancing all appeals to the cupidity of voters collectively as well as individually. After the salary of a county judge had been fixed by the board authorized by law to regulate it, a candidate for the office published and circulated a promise addressed to the electors of the county, that, if elected, he would perform all the duties for a less sum than had been named. He received a majority. There was a contest for the office. The court held that the offer to accept for his own use less than the legal fees attached to the office, made for the purpose of influencing votes at the election, invalidated the title to the office. (State ex rel. Newell v. Purdy.)

The court said: "Hawkins, in his treatise on the Pleas of the Crown, after defining the term bribery, when used in a strict sense, that is, as descriptive of a crime, proceeds thus: Also bribery sometimes signifies the taking or giving of a reward for office of a public nature. And certainly nothing can be more palpably prejudicial to the good of the public than to have places of the highest concernment, on the due execution whereof the happiness of both king and people doth depend, disposed of, not to those who are most able to execute them,