Section 4 of the act of congress, approved May 31, 1870, entitled “An act to enforce the right of citizens of the United States to vote in the several states of this Union,” and for other purposes (16 Stat. 141), declares: “That if any person,
On the 2d day of October, 1872, the plaintiff, claiming to be an elector under the laws of the state of Georgia, offered to vote at an election held on that day in the city of Savannah for governor and members of the general assembly. The defendant was a superintendent at the poll where plaintiff offered to Vote, and refused to receive his ballot. The plaintiff thereupon brought this suit, the same being an action on the case to recover the forfeit of five hundred dollars provided for in section 4 of tlie act of congress above quoted. The charge in the declaration is that the defendant “did by unlawful means prevent the plaintiff from voting at said election, the said unlawful means then and there being the holding and deciding that the plaintiff must show that he had paid all legal taxes for the year 1871, the said year not being the year next preceding said election, which the plaintiff admits he had not paid, but avers he had paid all legal taxes for the year 1S72 in the manner prescribed by law.” A second count alleges that the defendant did unlawfully hinder and prevent the plaintiff from voting at said election, by refusing his vote, for the reason that the plaintiff laid not paid his taxes for the year 1871, wffien in fact the plaintiff was a legal voter without .the payment of any tax whatever.
It will strike the most careless reader of section 4 of the act of congress, above quoted, that the same state of facts that would authorize a recovery in this case would also authorize a conviction of the defendant for a misdemeanor with a penalty of fine or imprisonment, or both, at the discretion of the court. We must therefore construe this section with- the same strictness that we would any other penal statute. The question then arises, would the facts stated in the declaration authorize a conviction in a criminal prosecution under this section? The offense described in the section is the preventing of any qualified elector from voting, “by force, bribery, threats, intimidation, or other unlawful means.” It is clear that the words “other unlawful means” refer to something akin to force, bribery, threats or intimidation. Lord Bacon observed “that as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” Hence, the celebrated rule that “where particular words are followed by general ones, as if after an enumeration of several classes of persons or things, there is added ‘and all others’; the general words are restricted in meaning to objects of the like kind with those specified.” 1 Bish. Or. Law, § 275, and cases there cited. The “unlawful means” charged as having been used by the defendant are not of a like kind with those specified, to-wit: “Force, bribery, threats or intimidation.” The defendant was acting under oath as a public officer in a quasi judicial capacity, and it is charged against him that while so acting he-did not construe correctly an obscure clause in the constitution of Georgia. It is not alleged that he decided against the right of plaintiff to vote, knowing that plaintiff had that right or that his decision was willfully wrong, malicious or corrupt. Giving the most liberal construction to the averment of the declaration, it only amounts to this, that the defendant fell into error in passing upon the plaintiff’s right to vote; that he construed that clause of the constitution which declares that “the elector must have paid all taxes which may have been required of him, etc., for the year next preceding the election,” to mean the year which ended on the 31st of December before the election, and not the year current, when the election was held. Can It be possible that congress meant to impose a forfeit of $500, to be recovered in a civil action, and a fine not less than $500 or imprisonment not less than one month nor more than one year, or both, to be inflicted by a criminal prosecution upon an officer, acting under oath, who had made an innocent mistake in judgment? The proposition is too absurd to be entertained.
The declaration then utterly fails to make out a case for recovery. The elector who is prevented from voting cannot recover, unless he shows that he was prevented either by force, bribery, threats, intimidation or other such unlawful means. If it had been averred that the defendant willfully and maliciously or corruptly decided against the plaintiff’s right to
Demurrer sustained, and leave given Dlain-tiff to amend.