Hanlon v. Partridge
| Decision Date | 12 March 1897 |
| Citation | 44 A. 807,69 N.H. 88 |
| Parties | HANLON v. PARTRIDGE et al. DONOVAN v. SAME. GALLAGHER v. SAME. |
| Court | New Hampshire Supreme Court |
Exceptions from Merrimack county.
Action by John C. Hanlon, Frederick Donovan, and Bernard Gallagher against one Partridge and others. From an order denying motions for nonsuits, defendants except Judgments for plaintiffs.
Albin, Martin & Howe, for plaintiffs.
Sargent & Hollis and William A. J. Giles, for defendants.
These are actions on the case against the defendants, supervisors of the check list of ward 3 in Concord, for willfully and maliciously neglecting and refusing to insert the plaintiffs' names on the list of voters on the state biennial election holden November 6, 1894, whereby the plaintiffs, being duly qualified to vote, were deprived of the right of suffrage. The defendants filed a general demurrer in each case, admitting all facts that were well pleaded, and denying the plaintiffs' right to recover, as matter of law. Subject to exception, the court overruled the demurrers and denied the motion for nonsuit made in each case. An examination of the declarations, and a comparison of the facts alleged in them with the provisions of the law of this state relating to the rights and qualifications of voters and the duty of supervisors, show that the declaration in each case is sufficient, as matter of law, to entitle the plaintiff to recover. The demurrers were properly overruled.
"If the supervisors at any session holden for the correction of the check-list, on receiving satisfactory evidence that any person whose name is on the list is not a legal voter, shall neglect or refuse to erase such name from the list, or shall neglect or refuse to insert on the list the name of any person who is a legal voter, having satisfactory evidence thereof, or shall neglect or refuse to hear or examine any evidence offered for such purpose in either of the cases aforesaid, or shall at any time insert on the list the name of any person not a legal voter, knowing such to be the case, or shall knowingly erase therefrom or omit to insert the name of any legal voter, he shall be fined not more than fifty dollars for each offense." Pub. St. c. 32, § 8. The defendants contend that this section contains all the law applicable to the punishment of supervisors for a willful violation of duty, which is by a criminal action and by a fine not exceeding $50. In Ashby v. White, 2 Ld. Raym. 938, it was decided that an action was maintainable at common law, by one having a right to vote at an election, against an election officer for depriving him of his right to vote. This decision was rendered nearly 200 years ago, and it has been generally followed in this country. It was cited and recognized in Wheeler v. Patterson, 1 N.H. 88. In Proprietors v. Champney, 2 N.H. 199, Richardson, C. J., speaking of selectmen in laying out public and private ways, says (page 201): "They seem to stand in the situation of the moderator of a town meeting, who is unquestionably answerable for maliciously rejecting the vote of one who has a right to vote." Cooley, Const. Lim. 616; Cooley, Torts, 415. Before the enactment of Pub. St. c. 32, § 8, the defendants would have been liable to the plaintiffs upon the facts stated in their declarations. The statute imposes a penalty upon the supervisors for a willful violation of duty. It furnishes no remedy to the party deprived of the right of suffrage. It does not make unlawful what was lawful before. It provides a new method of punishing official wrongdoing, but gives no relief to the parties aggrieved, who are left to pursue the remedy which the law provides by a civil action for damages.
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... ... Obear , 54 Ga. 231; Lowenberg v. People , 27 N.Y ... 336; City of Chippewa Falls v. Hopkins , 109 Wis ... 611, 85 N.W. 553; Hanlon v. Partridge , 69 N.H. 88, ... 44 A. 807. The law upon the subject of dower thus stood as ... above indicated until April, 1896, when the first ... ...
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