153 Iowa 139 | Iowa | 1911
At the time of the November, 1908, general election, the plaintiff was a student of Cornell College, Mt. Yernon, Iowa, and the defendants were judges of said election in Mt. Yernon precinct. The plaintiff presented himself at the polls at the proper time, and demanded a ballot for the purpose of voting. He was refused a ballot, whereupon he demanded that the statutory oath
Any person offering to vote may be challenged as unqualified by any judge or elector; and it is the duty of each of the judges to challenge any person offering to vote whom he knows or suspects not to be duly qualified; and he shall not receive a ballot from a voter who is challenged until such voter shall have established his right to vote. When any person is so challenged, the judges shall explain to him the qualifications of an elector, and may examine him under oath touching his qualifications as a voter. In all precincts where registration is not required, and in other precincts where the name of such voter is entered upon the registration lists, if the person challenged insists that he is qualified, and the challenge is not withdrawn, one of the judges shall tender to him the following oath: ‘You do solemnly swear that you are a citizen of the Hnited States, that you are a resident in good faith of this precinct, that you are twenty-one years of age as you verily believe, that you have been a resident of this county sixty days, and of this state six months next preceding this election, and that you have not voted at this election,’ and if he takes such oath, his vote shall be received.
Judge Cooley, in his work on Constitutional Limitations (6th ed.), page 776, says: “Where, however, by the law under which the election is held, the inspectors are to receive the voter’s ballot, if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the oath, or' to refuse the vote after the oath has been taken. They are only ministerial officers in such case, and have no discretion but to obey the law and receive the vote.” It is so held in People v. Bell, 119 N. Y. 175 (23 N. E. 533); People v. Pease, 27 N. Y. 45 (84 Am. Dec. 242) ; Spragins v. Houghton, 3 Ill. (2 Scam.) 377; State v. Robb, 17 Ind. 536; Wolcott v. Holcomb, 97 Mich. 361 (56 N. W. 837, 23 L. R. A. 215); 15 Cyc. 367, and cases cited. And such was also the holding in Ashby v. White, 8 State Trials, 89 (Eng.) 2 Ld. Raym., and in Gillespie v. Palmer, 20 Wris. 544; 10 Am. & Eng. Ency. of Law, 668. The appellees rely upon Vanderpoel v. O’Hanlon, 53 Iowa, 246, as controlling this case on the facts, but the facts are not the same in both cases; and hence, that case does not necessarily control this one. The statement of the issues in that case indicates that the voter took the oath and ten
The plaintiff alleged that the defendants acted wilfully and maliciously in refusing to swear him and to accept his ballot, and, if that was found to be true, the jury would have been warranted in awarding the plaintiff a substantial recovery. While the election board should have received the plaintiff’s ballot upon his taking the prescribed oath, there can be no recovery against the board for refusing to receive his ballot, unless the plaintiff shows that he was a resident of Mt. Vernon and entitled to vote there at the time in question. As we have already said, the court should not have held as a matter of law that the plaintiff was not a resident, and hence not entitled to vote, but should have submitted that question to the jury. The judgment must therefore be reversed.