Byler v. Asher

• Decision Date: 31 January 1868
• Citation: 47 Ill. 101,1868 WL 4941
• Parties: JOHN BYLER et al.v.JOHN ASHER.
• Court: Illinois Supreme Court

47 Ill. 101

1868 WL 4941 (Ill.)

JOHN BYLER et al.

v.JOHN ASHER.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

The opinion states the case.

Mr. N. BUSHNELL and Mr. JACKSON GRIMSHAW, for the appellants.

Messrs. WHEAT & MARCY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by John Asher, against John Byler and Charles F. Talcott, in the Adams Circuit Court, as judges of election, for refusing to receive his vote, at an election held on the 6th of November, 1866. At the July term, 1867, a trial was had, and appellee recovered a judgment for five dollars damages, and costs of suit. To reverse that judgment the case is brought to this court, and various errors are assigned upon the record.

It appears that appellee is a white man, and had resided in the precinct for many years, and was personally and well known to both appellants, and had for many years been in the habit of voting at that precinct. But he was not registered as a voter at that election. When he made application to vote, the judges examined the register, and his name not appearing thereon, they refused to permit him to vote, assigning as a reason that he had left the State to avoid the draft, and was not, therefore, entitled to exercise the right of an elector. Appellee, thereupon, made an affidavit that he was “an inhabitant of the precinct, and was entitled to vote therein at said election,” and presented it, with his ballot, to the judges, and demanded the right, but they declined to receive it, for the same reason, but offered to permit him to vote if he would swear that he had not left to avoid the draft. This he declined to do. Appellee made no other proof than his own affidavit. He did not offer the affidavit of a “householder and registered voter,” as required by the seventh section of the act of 1865, p. 66, regulating the registry of voters and the manner of voting.

On the trial in the court below, appellants offered to prove that appellee was enrolled in the military service of the United States, in the military district in which he resided, and to avoid the draft, that he left home and went beyond the district; also, to read the president's proclamation, but the court refused to permit the evidence to be introduced, and likewise instructed the jury that they should not regard such evidence. It is urged, that while this evidence did not constitute a defense, still it was proper to show the animus of appellants in refusing to receive the vote. It is an answer to this position, that it does not appear to have been offered for such a purpose, and even if it were proper, to mitigate damages, it should have been offered for that purpose, and not as a defense. It is conceded to be no defense until a judicial determination was had, and a sentence should be passed depriving a party of his right of citizenship. The judges of election were not vested with such a power, even if Congress had the constitutional authority to enact such a law. But in any point of view, we see no error in excluding this evidence, or in giving the instruction. Even for purposes of mitigating damages, if it had been admissible, we do not see that it would have availed him, as the jury assessed the damages at but five dollars, which is but nominal.

The next question is, whether the court below erred in refusing to give the instructions asked by appellants. They are these:

1. “The court instructs the jury, that even if the jury believe from the evidence, that defendants refused to permit plaintiff to vote at the election mentioned in the declaration, and gave as a reason therefor some excuse that would not of itself be a legal reason, still they cannot find for plaintiff unless they further believe from the evidence that plaintiff himself had fully complied with all the requirements of the law, in order to show his right to vote.”

2. “If the jury believe from the evidence, that the plaintiff was not registered as a voter at the election referred to in the evidence in this case, and that the defendants, acting as judges of such election, refused to permit him to vote, that...