Sanders v. Getchell

• Decision Date: 16 May 1884
• Citation: 76 Me. 158
• Parties: GEORGE D. SANDERS v. ELBRIDGE L. GETCHELL and others.
• Court: Maine Supreme Court

76 Me. 158

GEORGE D. SANDERS v. ELBRIDGE L. GETCHELL and others.

Supreme Judicial Court of Maine.

May 16, 1884

ON REPORT.

An action against the selectmen of Waterville for unreasonably and wilfully omitting to place the name of the plaintiff on the voting list and unreasonably, wilfully and oppressively refusing so to do, or to permit him to vote at the September election of 1882. The writ is dated September 23, 1882. The plea was the general issue. By the terms of the report the court were to render such judgment as may be proper. The opinion states the material facts.

Baker, Baker and Cornish, for the plaintiff, cited; Asby v. White, 2 Ld. Ray'd, 958; Gardiner v Ward, 2 Mass. 244; Kilham v. Ward, 2 Mass. 236; Lincoln v. Hapgood, 11 Mass. 350; Capen v Foster, 12 Pick. 487; Gates v. Neal, 23 Pick. 308; Humphrey v. Kingman, 5 Met. 162; Blanchard v. Stevens, 5 Met. 298; R. S., c. 4, § 71.

F. A. Waldron, also for the plaintiff.

Edmund F. Webb and Appleton Webb, for the defendants.

We maintain, first that the plaintiff was not entitled to the right of suffrage, in Waterville, because he was not a legal resident therein. Art. II of the constitution; sect. I, among other things provides, " nor shall the residence of a student at any seminary of learning entitle him to the right of suffrage in the town, or plantation, where such seminary is established." The same section requires a residence, established for three months, next preceding the election, as a qualification of an elector.

We maintain that the plaintiff left Foxboro and went to Waterville solely to obtain a liberal education at a seminary of learning; that he had no other intention or purpose and intended to leave Waterville as soon as he had accomplished his special purpose. Plaintiff said, he intended to take the two courses in Waterville, which he did, and then go to Newton. And he did just what he said he intended to do. He was a student at college and nothing else. In Granby v. Amherst, 7 Mass. 1, it was held that four years residence at Dartmouth College in the usual course had no effect whatever upon a legal settlement. Now there was no change in the plaintiff's relations, evidenced by any physical acts, after he made up his mind in 1878-9, to become a resident of Waterville. He was still a student, no new relations, only an operation of the mind; no change of occupation; remained in the college buildings the same. His residence was still a student's residence and no other. The opinion of the Massachusetts court, 5 Met. 587, which is referred to by several witnesses, is sound law covering the facts upon which it was based, but the facts are not parallel to this case at all. The constitution's provision is different from ours.

By R. S., c. 4, § 3, the selectmen are required to be in open session to receive evidence of the qualifications of persons claiming the right to vote. In receiving the application of persons claiming the right to vote and deciding thereon the selectmen are acting in a quasi judicial capacity. Donahoe v. Richards, 38 Me. 392. They are public officers, exercising a discretion in the discharge of a public duty, cast upon them by law, and they are not liable while acting in good faith, and without motive. The plaintiff's counsel at the time of trial relied upon the case of Lincoln v. Hapgood, 11 Mass. 350, decided in 1814, where it is held that selectmen are liable without notice. That is not law now in Massachusetts. The hardship upon public officers was so great that the legislature changed the rule of law. This decision is at variance with the law of England. Harman v. Tappenden, 1 East, 563, and with most of the states of the union.

In Wheeler v. Patterson, 1 N.H. 88, it was held that an action would not lie against a moderator of a town meeting for refusing to receive the vote of a person legally qualified to vote, without showing malice. In this case Lincoln v. Hapgood et als. was considered and distinctly overruled. In Jenkins v. Waldron, 11 Johnson's Rep. 114, it is held that an action will not lie against inspectors of an election for refusing the vote of a person legally qualified to vote without proving malice--that officers required by law to exercise their judgment, are not answerable for mistakes in law or mere errors of judgment without any fraud or malice. Drewe v. Coulton, 1 East, 563, was an action against the defendant as returning officer of the borough of Saltash for refusing the vote of the plaintiff in an election of members of parliament, it was held that the action would not lie without proof of malice. In Asby v. White, 2 Ld. Raymond, 938, the court say " there is no instance of an action of this sort maintained for an act arising merely from error of judgment."

In Temple v. Mead, 4 Vt. 535, the court say quere whether an action lies against an officer presiding for refusing to receive a legal vote where this is not malicious but only an error of judgment on a point considered doubtful.

The selectmen are acting, not in behalf of themselves, they have no interest in the matter, they have no fee, but they sit as referees or judges and the parties are the applicant claiming the right to vote--the candidates and all the qualified electors. The selectmen must decide one way or the other. They hear the evidence; they weigh it; they hear the parties and their counsel and their friends. They are acting and they decide under a solemn oath. After investigation they are to determine what is to be done. If acting in good faith, they err, it is merely what is incident to all tribunals; to hold them legally responsible, in such a case, would be to punish them for their honest convictions in a matter they are obliged to decide. Donahoe v. Richards, supra.

The Massachusetts cases referred to by the plaintiff's counsel have but little bearing on this case because they hold that an action lies against the selectmen in case like this without proof of malice. Blanchard v. Stearns, 5 Met. 298, on page 301, the court says the statute of that state recognizes that they may be liable; and that without proof of malice, or any wilful and corrupt purpose. That is not our statute. Our statute negatives that position, hence those decisions are not germain to this case.

PETERS C. J.

The plaintiff sues the selectmen of Waterville for refusing to place his name on the list of voters in that town for the state election held in September, 1882.

The question arises as to the extent of the liability of selectmen for refusing to receive the vote of a qualified elector. And this involves the construction of the statute, in its application to the facts of the present case, which provides that " in no case shall any officer of a city, town or plantation incur any punishment or penalty, or be liable in damages by reason of his official acts or neglects, unless they are unreasonable, corrupt, or wilfully oppressive." R. S., (1871) ch. 4, § 63. The case calls for our views as to what would be an unreasonable act or neglect. If the act be corrupt or oppressive, it would surely be unreasonable. An act may be unreasonable, and fall short of being either corrupt or oppressive. The fact that unreasonableness is the least in degree of the wrongs that may be imputed to officers, supersedes the necessity of our troubling ourselves with the meaning of the other terms. If the defendants were not unreasonable in their action, no liability attaches.

The condition of the law applicable to such actions, as it stood before the statute above quoted was enacted, is instructive upon the question presented. The rule in England, and in most of the states in this country, has long been, that returning officers and inspectors of elections who are required to pass upon the qualification of voters, possess judicial functions in so doing, and are not liable to damages for rejecting a vote unless the rejection be malicious or wilful as well as wrongful. English judicial opinion at first inclined the other way, but after memorable contests over the question, such came to be the settled law of that country. Almost all the courts in this country have acted upon the same rule. Cool. Con. Lim. *617. See remarks of SHAW, Ch. J., in Blanchard v. Stearns, 5 Met. p. 300.

This doctrine, however, has its difficulties and dangers. Courts have always appreciated the fact that there are potential arguments both for and against it. The Massachusetts court, before the separation of Maine from that commonwealth, with some degree of hesitation, adopted the contrary doctrine, holding selectmen liable who merely reject a vote wrongfully. Lincoln v. Hapgood, 11 Mass. 350. That court, however, has refused to apply the principle in analogous cases; thereby making the application of the rule exceptional upon grounds of public policy. Spear v. Cummings, 23 Pick. 224. In Capen v. Foster, 12 Pick. 485, SHAW, Ch. J., said: " It has been regarded as a question of doubt and difficulty, whether, upon strict principle, a public officer who acts honestly and according to the best of his judgment, in the discharge of his duty, and who through such honest mistake and error of judgment, denies to a citizen his right of voting, should be answerable in an action for damages."

Our own court recognized the earlier Massachusetts cases as binding on it, and applied the principle in several cases. Lord v. Chamberlain, 2 Me. 67; Jones v. Cary, 6 Me. 448; Osgood v. Bradley, 7 Me. 411. But refused to apply the principle in analogous cases. Donahoe v. Richards, 38 Me. 376, 379. The case of Osgood v. Bradley, supra, excited a good deal of attention, and, immediately after its announcement, the present statute, before quoted, was passed, having been first enacted in 1831.

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