Curry v. Cabliss

Holmes, Judge, delivered the opinion of the court. The questions to be considered here are only such as arise upon demurrer to plaintiff’s petition. The chief objection was that the petition did not state the facts necessary to be shown in order to constitute the plaintiff a qualified and legal voter, and only conclusions of law. The petition did not [334] aver any of the particular facts on which his right to vote depended. It recited only that the plaintiff “being in a.ll respects a legal voter of said county, and entitled to vote at said election, having fully complied with the law respécting voters previous to offering his vote or ballot,” appeared before the judges and delivered his vote, which was received and deposited in the ballot-box, and afterwards thrown out. The constitution, ordinances, and statutes of the State, define the qualifications of voters at this election, and the several provisions on the subject show that facts must exist with regard to any person claiming a right to vote in the State, before he can be entitled to vote at any election. The evidence of these facts must be produced or the facts shown to the judges of the election, in the manner provided by law, and the judges are to be satisfied that the person offering to vote is a legal voter. (Laws of 1863, p. 17, § 4.) The cause of action here is founded on the right to vote, and the action is maintainable where that right has been wilfully, or maliciously, or wrongfully denied by the judges of election, on the ground that wherever there is a right, there is a remedy. But all the facts necessary to constitute that right must be stated in the petition, in order that the court may see, that as a matter of law, the right exists. It cannot be allowed to the party to judge, both for himself and the court, what facts shall be sufficient in law to entitle him to vote at any given election; nor to draw the conclusions of law for himself in his petition. It is a familiar rule of pleading that the plaintiff must state in his petition all the facts, specifically, which would be necessary, if true, to entitle him to maintain his action, or to have the relief which he seeks. (Biddle v. Boyce, 13 Mo. 532.) And when the right to vote depends upon qualifications prescribed by statute, and it is provided that the judges shall be answerable only in certain specified cases, the plaintiff must state specifically all the facts necessary to bring his case with] in the statute; he must aver, not only in general terms, that he was a legal voter, but the facts which constitute him such [335] legal voter. (Blanchard v. Stearns, 5 Metc. 298.) It was also held in this case that the plaintiff must not only allege and prove the facts which made him a legal voter, but also that he furnished the judges of election with sufficient evidence of his having the legal qualifications of a voter, and requested them to receive his vote, before his vote was refused ; and he cannot be entitled to recover without showing that he produced, or was ready to give, such evidence of his right as ought to have been received as satisfactory by the judges. In the case of Ashby v. White (2 Ld. Raym. 738), 1 Smith’s Lea. Cas. 290, the declaration alleged that the plaintiff was a burgess and an inhabitant of the borough of Aylesbury, and not receiving alms there or elsewhere, but “ was duly qualified and entitled to give his vote for the choosing of two burgesses for the borough aforesaid”; and Ch. Justice Holt said that the right of representation in the Commons of England was “ exercised in these different qualities, either as knights of shires, citizens of cities, or burgesses of buroughs”; and the right of election belonged to them as freeholders of the counties, and was “ incident to, and inseparable from, the freehold.” It would, then, appear that when the plaintiff averred that he was a burgess of the burough, not receiving alms, he but stated facts from which it could be seen that he was legally entitled to vote in that borough. In Pryce v. Belcher, 3 C. B. 58; 1 Smith’s Lea. Cas., n. 309, the plaintiff was registered as a voter for the burough of Abingdon, but in consequence of becoming a non-resident he had lost his right to vote there, and it was held that he could not maintain an action against the judges of election for refusing to receive his vote. Here the plaintiff makes no averment of the constitutional qualification, that he was a free white male citizen of the United States; nor that he had attained to the age of twenty-one years; nor that he had resided in this State one year before the election, the last three months whereof were in the county or district in which he offered his vote; nor that he offered a ballot having written thereon the words “New Constitution — yes,” or the words [336] “ New Constitution — wo” (Art. XIII., § 3, of the Const.); nor (if he were then absent from his place of residence) that he had offered any evidence to satisfy the judges that he was a qualified voter, or that he offered to be sworn by them that he had not voted in said election at any other election precinct (id. § 5) ; nor that he had taken, or offered to take, “ the oath of loyalty,” to be administered by the judges of election to every voter, as required by the Constitution (ib. § 6). He merely avers that he had “fully complied with the law respecting voters previous to offering his vote.” That averment is a mere conclusion of law drawn by himself, and not a statement of facts from which the court might draw the conclusion, that, as a matter of law, he was a qualified voter, and had a legal right to vote. He does not allege the facts necessary to show that he was a legal voter of the county, but only that he was “ in all respects a legal voter of said county;” which again is merely a conclusion of law, and not a statement of facts. The complaint is, that the judges illegally, wilfully, maliciously, and corruptly threw out his vote after it had been received and deposited in the ballot-box, and refused to count the same with the other votes, and destroyed the same. The facts are not stated in such manner as to enable us to say, whether the transaction amounted to anything more or other than a mere refusal to receive and count his vote. Nor, if it distinctly appeared that the vote had been received, the name of the voter entered in the poll-books, the poll-books signed by the judges, and the ballot-box opened, and the votes counted and strung on a string, and sealed up in a package, and delivered to the clerk of the county court for safe keeping, as required by the statute (Laws of 1863, p. 17), or that any fraud had,been practised on the ballot-box at any stage of the proceedings, would it be necessary now to decide in what manner the judges, or the person so offending, would be held responsible, or to whom liable in damages, or otherwise. The gravamen of the complaint here seems to be, the refusal of the judges to receive and count the plain [337] tiff’s vote; and, for the reasons already stated, we are of the opinion that the petition does not state facts sufficient to constitute a cause of action, aiid that the demurrer was well taken. The judgment is affirmed. Judge Wagner concurs; Judge Lovelace absent.