Bevard v. Hoffman

• Decision Date: 09 July 1862
• Citation: 18 Md. 479
• Parties: WILLIAM H. BEVARD v. ISAAC HOFFMAN and others.
• Court: Maryland Court of Appeals

18 Md. 479

WILLIAM H. BEVARD v. ISAAC HOFFMAN and others.

Court of Appeals of Maryland.

July 9, 1862

The office held by judges of election is in its nature judicial, and such officer cannot be held legally responsible for any thing more than an honest and faithful exercise of his judgment, and is not liable for the consequences of mistakes honestly made.

In an aetion against judges of election, for refusing to permit the plaintiff to vote, the declaration must allege, that the act was done wilfully and fraudulently, or corruptly: for wrongs so done, these officers are liable both civilly and criminally, but not for an error of judgment.

APPEAL from the Circuit court for Carroll County.

Action brought December 3rd, 1856, by the appellant against the appellees, judges of election for the eighth election district of Carroll county, to recover damages for their refusal to permit the plaintiff to vote at the presidential election, November 4th, 1856. The declaration avers, that the plaintiff was duly entitled to vote at that election, and that the defendants, the duly appointed qualified and acting judges of election, refused to receive the plaintiff's ballot, which he was authorised by law to cast at that election, and to permit him to vote. The defendants demurred, 1st. Because the action cannot be sustained against the defendants jointly. 2d. Because the defendants are judges clothed with judicial power granted to them by law. 3rd. Because the declaration does not allege that the defendants, as judges of the election, in discharging their duty, acted fraudulently, wilfully corruptly and maliciously, in refusing to receive the plaintiff's ballot.

The court (NELSON, J.) sustained the demurrer, and gave judgment thereon for the defendants, from which the plaintiff appealed.

The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.

Oliver Miller for the appellant:--This is the case of a citizen admitted to be entitled to vote, deprived of his right of suffrage by the refusal of the judges of election to receive his ballot, and the questions are, can this action be maintained against these officers for such refusal? and if so, does this declaration contain sufficient allegations to support it? This is a new question in this State, and the appellant insists:--

1st. That the decisions of the courts of every State of the Union, where the question has arisen, are full to the point, that an action lies against such officers jointly, at the suit of the citizen who has been deprived of his vote, and the fact that they were acting judicially, or were quasi judges, in the discharge of the duties of their office, makes no difference.

2nd. That the action lies, as well where the citizen has been deprived of his vote by the mistaken judgment of these officers, as where he has been deprived of it by their wilful, corrupt, and malicious action. Upon this point the decisions of the courts of the different States are in conflict; some holding that it is necessary to allege and prove wilful, corrupt, and malicious conduct on the part of these officers, to sustain the action, whilst others hold that such averments and proof are not necessary, but the fact of the absence of fraud, corruption, and malice, is only to be considered in mitigation of damages, and not in bar of the action, and it is submitted the latter class of decisions should govern in this case, as being best calculated to secure to the citizen the exercise of the right of suffrage, which has so often, in our Constitution and form of government, been declared to be an invaluable right, and at the same time, not to harass with unnecessary damages, those who are appointed and paid to preside at elections, for an honest mistake in rejecting a qualified voter. 2 Ld. Ray., 938, Ashby vs. White. 2 Mass., 236, Kilham vs. Ward, et al. 11 Mass., 350, Lincoln vs. Hapgood, et al. 9 Pick., 312, Henshaw vs. Foster, et al. 5 Metc., 298, Blanchard vs. Stearns, et al. 11 Ohio, 373, Jeffries vs. Ankeny, et al.

Jos M. Palmer, for the appellees:--In this State, judges of election are judicial officers, and have judicial powers while attending to their duties on the day of election; --they are conservators of the peace during the continuance of the election, may commit offenders for any breach of the peace, and are required to take an oath to permit all persons to vote, who, in " their judgment, " are entitled, under the Constitution and laws, to vote, and not to permit any person to vote who is not, " in their judgment, " qualified to vote, and that they will in all things execute the office of judges of the election without favor or partiality. Code, Art. 35, secs. 7, 9. It must, I think, be conceded, that while so acting they are judicial officers, and if so, this action cannot be sustained without a charge in the declaration, that in refusing to permit the plaintiff to vote they acted corruptly and maliciously. Mere error of judgment in not permitting a man to vote, certainly cannot lay the foundation of an action against judges; if so, but few men could be procured to act in such capacities. It is a well settled principle of the common law, that all judicial officers, while acting...