| Mass. | Jan 5, 1886
It is the contention of the defendants, that no action can be maintained against them for erasing the plaintiff’s name from the register of voters, he having appeared before them at a meeting held for receiving evidence of the qualifications of voters, and furnished them with satisfactory evidence of such qualifications.
The law makes provision for a register of voters, and also for alphabetical lists. The latter are used at an election, and contain simply the names and residences of voters, while the former embraces a larger number of particulars. Pub. Sts. c. 6, §§ 16, 18, 20. The provision that “ selectmen of towns shall make and keep records of all persons entitled to vote therein at any election for town, county, state, or national officers, which shall be known as a register of voters,” contemplates a permanent record, to be revised from time to time, as before any annual election, or upon affidavit that persons named are illegally registered. Pub. Sts. c. 6, §§ 13,15, 22. As it exists, it determines the right of persons to vote, as from it the alphabetical lists of voters are made. While the selectmen are to meet on the Saturday before the meeting for the choice of town, county, or state officers, to receive evidence of the qualifications of persons claiming a right to vote, and to correct the lists of voters, the first step in the latter duty is to correct the registration, which ceases at ten o’clock in the afternoon of that day. § 23. As no person can be added to the lists of voters until his name has been recorded in the register, according to the express words of the statute, so it would seem clear that it cannot be thence erased until it has been struck from the register. § 27.
The argument is not sound, that there must be a new register at each election, and that, as it is so prepared for each, it cannot be said that any name is erased therefrom merely because it is not there found at ten o’clock on the Saturday afternoon previous to an election, when registration ceases, even if it had been on previous registers. While the register is subject to various modifications, such as those heretofore alluded to, it does not lose its substantial identity. The provision by which at any time, except that it must not be within seven days of
The rights of the voter in approaching the polls are indeed dependent upon the voting list, and the words “and no person shall vote at an election whose name has not been previously placed on such list,” refer to the alphabetical list furnished to the officers conducting the election. Pub. Sts. c. 7, § 9. But the voting list depends on the registration which has been theretofore made. When, therefore, the defendants struck the plaintiff’s name from the register, they effectually deprived him of his right to vote at any subsequent election until it was restored thereto. It was the duty of those conducting the election to refuse his vote. The erasure of his name was the injury which he sustained, and, if this was wrongful, he might maintain an action therefor, if at a meeting held for the purpose of registration he had appeared before the selectmen and furnished them with proper and sufficient evidence of his qualifications. Lombard v. Oliver, 3 Allen, 1, and 7 Allen, 155. Harris v. Whitcomb, 4 Gray, 433.
The fact, that,, if he had formally tendered his vote, which had been refused, he might also have maintained an action for such refusal by reason of having furnished to the selectmen sufficient evidence of his qualifications as a voter before the close of registration, and requested that his name be put upon the list, should not' deprive him of his remedy for the injury done him by the removal of his name from the register. Pub. Sts. c. 7, § 10. Blanchard v. Stearns, 5 Met. 298, 301. Whether he appeared before the selectmen before the close of registration for the purpose of having his name put on the register, or, it being there, to prevent it being taken off, cannot be important. The removal of his name was, if wrongful, a direct injury, which deprived him of his right to vote. For this an action may be maintained, although there are also highly penal provisions in the statute, intended to provide for wilful violations of the rights of a voter, under which the plaintiff does not seek to recover.
It was not material whether the plaintiff actually tendered his ballot, as it could not have been received, his name not being upon the list, nor whether the tax collector had or had not
The defendants urge that the declaration does not set forth a cause of action, because it does not show that the erasure was made from the register prepared for the election of November 6, 1883. The declaration was, that an election was to be held on November 6, 1883; that the plaintiff’s name had been, and was, on November 1, on the register of voters; that he had a right to vote at such election; that on November 3, although the defendants had sufficient evidence furnished them of his qualifications, they wrongfully removed his name from the list, by which he lost the privilege of voting. This sets forth a good cause of action, and although it also adds that the defendants wrongfully refused to receive his ballot, on which part of his declaration he was not entitled to rely, as the ballot had not been properly tendered, this could not affect the other cause of action, which was well set forth.
Exceptions overruled.