Friend v. Hamill

Miller, J., delivered the opinion of the Court. This action was brought against the appellants, judges of election, to recover damages for refusing to allow the appellee to vote at the State election in November, 1866. The record contains a large number of exceptions, and the trial appears to have been strongly contested at every step of its progress. In this Court the cause has been argued with great earnestness and ability.

We shall consider and dispose of the several questions in the order in which the record presents them. When the case was called for trial, the defendants challenged the array of jurors for that term of the Court on two grounds: 1st. That the list of two hundred names from which these jurors were drawn, rvas selected and made by one and not by all of the Judges of the Circuit Court. 2d. That no such certificate as is required by law was appended to the said list of two hundred names.

First. No difficulty is encountered in disposing of the first objection. The Act of 1867, ch. 329, the first general law abolishing the old and establishing the present admirable system of selecting jurors in the counties, was passed when there was but one Judge for each of the several circuits. The amendatory Act of 1868, ch. 316, was passed after the adoption of the present Constitution, which changed the judicial ³⁰¹ system of the State by diminishing the number of circuits, and providing for each circuit a Chief Judge and two Associate Judges, the Chief Judge being made also one of the Judges of the Court of Appeals.

By each law the duty of selecting and drawing jurors is devolved upon “ the Judges of the Circuit Courts for each of the counties.” When the Legislature of 1868 reenacted this requirement in the same language used in the preceding Act, it is clear to our minds, they did so in view of the provision in the 21st section of the 4th Article of the Constitution, that “one Judge in each of the above circuits shall constitute a quorum for the transaetion of any business; and the said Judges, or any of them, znay hold special terms of their Courts whenever in their discretion the business of the several counties renders such terms necessary,” a power znade indispensable by reason of the number of counties in many of the circuits, and the necessaiy absence of the Chief Judges in discharge of their nzore important duties in the Appellate Court. Read, as it must be, in this connection, the true construction of the law is that any one of the circuit Judges may discharge this duty, and without doubt such was the intention of the law-makers. The argument ab inconvenienii is also a conclusive answer to the opposite construction, for it would, in many cases, be impossible for the three Judges to unite in the performance of this duty in each of the counties, and for each of the numerous terms of the Courts. The entire judicial system of the State would be embarrassed in its opei’ation, and the regular and prompt administration of justice defeated by the opposite construction.

Seeondly. The law requires that when this list has been made the Judge shall append thereto a certificate “that said list of names has been duly selected in conformity with, and according to the spirit and intezit of this Act.” Substantial compliance with this requirement was undoubtedly essential to the lawful organization of a jury to try this cause. The certificate in the record signed by the Judge is as follows: ³⁰² “ I hereby certify that the aforegoing list of names to serve as jurors were selected in conformity with Acts of Assembly in such case made and provided, this 14th day of November, 1868.” There have been many decisions in this State as to the construction of like provisions in reference to official certificates, and the observance of forms prescribed by Statute. In Hollingsworth vs. McDonald, 2 H. & J., 237 , it was decided that a literal adherence to the form of the certificate for the acknowledgment of deeds of femes covert, was not essentially requisite, and that the omission of words deemed essential could be supplied by the substitution of others of similar import and signification.

In Hall vs. Gittings, 2 H. & J., 380 , the words “legally authorized and assigned ” vrere held equivalent to the words “duly commissioned and sworn,” in a certificate required by the Act of November, 1766, chap. 14, to be given by a county clerk, as to the qualification of the justices before whom an acknowledgement of a deed conveying land in another county was made; and in the case of Beall vs. Lynn, 6 H. & J., 355 , a still further departure from the language of that statute was sanctioned, the Court saying that in the former case of Hall vs. Gittings, reliance had been placed on the words “ legally authorized and assigned,” not because there was any magic in them, but because they import that the justices must have been commissioned and sworn, and are therefore a substantial compliance with the Act, and that any other words which necessarily import that they were commissioned and sworn, would be as substantial a compliance with the Act as “ legally authorized and assigned.” In Young vs. The State, 7 G. & J., 253 , several omissions in the strictly prescribed statutory formula of a sheriff’s bond were held not to invalidate the instrument, and that the duties imposed by the omitted words were covered by the general language in the commencement of the condition of the bond; and in that case the Court with emphasis repeat, “ that substance and not form is to control the construction of legislative enactments prescribing a mode in w-hich acts are to be done.” These ³⁰³ decisions were followed in the similar case of Warner vs. Hardy, 6 Md., 525 . The rule of substantive compliance is too well settled by these authorities to bo for a moment doubted, and it must control the decision of the question now before us. This jury law provides that the Judges shall select the names of a certain number of persons of a prescribed age, from the tax list and poll-books, within a certain time, and after notice of time and place given to the bar, and in the presence of such practicing members thereof as may choose to attend, and that they shall make the selection fail ly and impartially, with special reference to the intelligence, sobriety and integrity of such persons, and without the least reference to their political opinions. A certificate, signed by the Judge, that he has discharged this duty, and made the selection “in conformity with” the law, is a substantial compliance with that part of the statute relating to the certificate.

It must be remembered this duty is imposed on Judges who act in its performance, in view of the responsibility attaching to their high official position, and under sanction of their official oaths, and the objection here does not reach to any charge of official misconduct therein, but simply to non-adherence to the letter of the statute in mere matter of form. Where a statute like this directs how the selection shall be made, a certificate stating it was made “ in conformity ” therewith, upon every reasonable construction of language, means that it was made “according to the spirit and intent” of the law. The two expressions are of equivalent import; the use of the latter phrase in the present certificate would impart to it no additional substance or force, and, as we have seen from the authorities cited, either may be used, or words of similar signification substituted for both. This second objection cannot therefore be sustained.

It will aid us in disposing of the exceptions, most of which are upon the admission or rejection of testimony, if we first notice briefly the nature of the action, what must be proved to sustain it, and what is admissible in defence. The case of ³⁰⁴ Bevard vs. Hoffman, et al., 18 Md., 475 , has settled the law of this State, that judges of election hold an office in its nature judicial, and cannot be held legally responsible for anything more than an honest and faithful exercise of their judgments, and are not liable for the consequences of mistakes honestly made, but are liable, both civilly and criminally, for a wrong which they wilfully, fraudulently or corruptly perpetrate. This declaration, therefore, properly avers that the defendants wilfully and fraudulently and corruptly refused to allow the plaintiff to vote. These charges must be sustained by proof to the satisfaction of the jury, and as in analagous cases, where fraud is the subject of inquiry or ground of action, any fact, however slight, if at all relevant to the issue, must be admitted in evidence.

Waters vs. Dashiel, 1 Md., 474 . The inquiry before this jury was, whether the defendants rejected, the plaintiff’s vote wilfully, maliciously and corruptly, or from an honest mistake of judgment. In a case where that is the inquiry, and where the right of which the plaintiff was deprived is of acknowledged importance, indeed of almost inestimable value, the right to say who he desired should represent him in the Legislature of the State, clothed with power to pass laws affecting his life, liberty and property, every fact and circumstance not in violation of cardinal rules of evidence, should be allowed to go to the jury in proof of the fraudulent, malicious and corrupt motives by which he avers the defendants were influenced in their action. On the other hand, the defendants must also be allowed to adduce every fact and circumstance which the same rules of evidence will permit, to show that the injury they inflicted was the result of honest and innocent mistake, and not of malice, fraud or corruption.

We shall now proceed to examine, in their order, the several exceptions taken by the defendants, which alone are brought up for review on this appeal. 1st. The first and second exceptions pi’esent substantially the same question. ³⁰⁵ The plaintiff (who was in politics a Democrat,) proved that he was duly registered as a legal voter prior to the election in [November, 1866; that the defendants, judges of that election, were all Republicans; that he offered to vote, and one of the judges said his vote was challenged, and he must take the oath; that he asked who challenged him, and what were the charges against him, to each of which questions the same judge replied he did not know; that he then declined to take the oath, saying he liad taken it before the register, and ho was not adowed to vote. His counsel then asked him what other votes the defendants rejected that day, and for the purpose of showing mala jides, said they would follow it up with proof that one of the judges had said more than a month before, that the plaintiff and others they rejected that day, all of whom were Democrats, and offered to vote the Democratic ticket, should not vote. The defendants objected to so much of this evidence as related to other persons, whose votes were rejected, but the Court permitted it to go to the j^y- The plaintiff then proved that his father, also a Democrat, and known to the judges as such, and who was likewise a registered voter, offered to vote the same ticket, but one of the judges said there were charges of disloyalty against him, which they did not offer to prove, but told him he must go to the Legislature and get a pardon; that his uncle and three others, also Democrats, and registered voters, were rejected on the same ground of disloyalty, of which no proof was attempted to be offered.

This proof the plaintiff’s counsel profferred to follow up by the testimony of another witness, that about a month before the election, the same judge had said to him, it was no use for witness and the Hamills, who had not registered before him, (he having been one of the registers for the previous year,) to register before Wilson, (the register for 1866,) for they should not vote, and that the plaintiff) and the parties named by him as rejected, were the parties alluded to by the said judge in this conversation. To so ³⁰⁶ much of this evidence as relates to the rejection of the votes of these third parties, and each of them, and the, reasons assigned by the defendants, or any of them therefor, the defendants objected, because such evidence is collateral to the issue in this cause, and would impose on the defendants the necessity of an examination before the jury, of the cases of each one of these rejected votes, but the Court admitted the evidence. There is no error in these rulings. This testimony throws light on the motives by which the defendants, or at least one of them, were actuated in rejecting the plaintiff’s vote, and tends to show they were influenced therein by partisan malice, and were not discharging their duty impartially, faithfully and honestly.

Where the inquiry turns upon intention and motive, and in cases where fraud, corruption and the like constitute the gist of the action, acts and declarations of a similar character, at or about the same time, to or towards third parties, are admissible to show the quo animo of the particular transaction. In Cullen vs. Morris, 2 Starkie, 577, Avhich was an action against a returning officer, for refusing the plaintiff’s vote, and where it Avas held the action could only be maintained by proving malicious and improper motives, evidence was adduced and received by Chief Justice Abbott of the defendant’s conduct with regard to other votes, to show he acted partially in excluding votes for one candidate, whilst he received those of persons similarly circumstanced, for the other. In Webb vs. Smith, 4 Bing., N. C., 373, which was an action to recover a statutory penalty for bribery at elections, the declaration charged the defendant with bribing one Jones to vote for a particular candidate, and evidence, that on the same day, and at the same place, he pursued, with respect to other voters, the same course as with Jones, and that they all voted for the same candidate, was held by all the judges to be admissible, to show animus and guilty knowledge. Numerous instances of the reception of like testimony in cases where fraud and false pretences were the sub ³⁰⁷ jects of investigation, could be cited, but we need only to refer to Wood vs. The United States, 16 Peters, 360; Bottomley vs. The United States, 1 Story’s Rep., 143; Casey vs. Hotaling, 1 Hill, 311 ; Rowley vs. Bigelow, et al., 12 Pick., 307 ; Hall vs. Naylor, 18 N. Y. Rep., 588 ; French vs. White, 5 Duer, 254 .

These, and cases of like character, form an exception to the general rule, excluding collateral facts or res inter alios acta. The authorities cited abundantly sustain the rulings in these exceptions. 2d. The third exception is to the refusal of the defendants to prove by one of themselves, in order to show they had no malice against the plaintiff, that when they assembled on the morning of the election, they concluded, in a conference among themselves, to permit all who were registered to vote, and they knew the plaintiff was a registered voter. An earnest, ingenious, but in our judgment, unsuccessful effort was made by the appellants’ counsel to rescue this testimony from the operation of the general rule, that a party cannot offer his own declarations in his own favor, in relation to the subject of controversy or matter in issue.

Our statute, making parties to suits competent witnesses, does not change any of the rules regulating the admissibility of evidence, and we are unable to find any ground, not infringing those rules, upon which the admission in their favor of what they said to each other, or agreed upon in a private conference on the morning of the election, and before the polls were opened, in reference to the course of action they would pursue in conducting the election, can be safely rested. Each of them had the right, and two of them, as the record shows, did testify that they did not reject the plaintiff’s vote from malice or ill-will. They had thus the benefit before the jury of their own statements of what their own intentions and motives were at the time they acted, but no rule of evidence will permit the offering of their own declarations previously made, to justify their conduct and disprove malice. This ruling is therefore affirmed. ³⁰⁸ 3d.

The testimony offered by the defendants, either generally or in mitigation of damages, in the fourth, fifth, sixth and seventh exceptions is all of similar import, viz: 1st. That it was■ commonly reported in that election district prior to the election of 1866, and had come to the hearing of the defendants prior to that day, that the plaintiff was a disloyal man, and had done acts which would disqualify him as a voter under the Constitution of 1864. '2d. That the defendants had been informed by citizens of that district, whose names they cannot now remember, that prior to the adoption of the Constitution of 1864, the plaintiff expressed his desire for the triumph of the arms of those engaged in armed hostility to the United States, commonly called rebels, over the arms of the