[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 422 The second article of the Constitution of this State, which was in force when the election in question was held, prescribes who of its citizens and inhabitants shall be entitled to vote at an election to be held therein for all officers that are elected by the people, and provides that laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or of any infamous crime; and for depriving every person who shall make, or become directly or indirectly interested in, any bet or wager depending upon the result of any election, from the right to vote at such election. (Secs. 1, 2.) It also directs that laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage thereby established. (Sec. 4.) The prior Constitution, adopted in 1846, contained the same provisions.
The legislature, on the 5th day of April, 1842, passed a law (Laws of 1842, chap. 136) entitled, "An act respecting elections other than for militia and town officers," which, as amended from time to time, is still in force. That law, at the time of the general election in 1868, when the plaintiff offered to vote, provided, by article second of its fourth title, that if any person offering to vote at any election should be *Page 424 challenged in relation to his right to vote at such election, by an inspector or by any other person entitled to vote at the same poll, one of the inspectors should tender to him a preliminary oath in the following words: "You do swear (or affirm) that you will fully and truly answer all such questions as shall be put to you touching your place of residence and qualifications as an elector." It then declared that the inspectors, or one of them, should proceed to question the person challenged in relation to his name, his place of residence, his citizenship, and certain other matters particularly specified, and then ask him all such other questions "as might tend to test his qualifications as a resident of the town or ward, citizenship and right to vote at that poll." (Secs. 13, 14.) It then contains these provisions (sec. 15): "If any person shall refuse to take the said preliminary oath when so tendered, or to answer fully any question which shall be so put to him, his vote shall be rejected." (Sec. 16.) "After receiving the answers of the persons so challenged, the board of inspectors shall point out to him the qualifications, if any, in respect to which he shall appear to them to be deficient." (Sec. 17.) "If the person so offering shall persist in his claim to vote, and the challenge shall not be withdrawn, one of the inspectors shall then administer to him the following oath," which is then set forth, and is, substantially, to the effect that he possesses all the requisite qualifications of an elector and had the right to vote.
The plaintiff was challenged when he offered to vote "on the ground of being disfranchised, as a deserter;" and having taken the preliminary oath, was asked by the chairman of the board of inspectors (composed of the defendants), if he had been in the military service of the United States; his answer was that he had. He was then asked if he had an honorable discharge therefrom; he refused to answer that question; and being further asked if he left the service without leave, he also refused to answer that question. On such refusal, the majority of the board — the challenge not being withdrawn — rejected his vote, although he persisted in his *Page 425 right to vote, and take the general oath above referred to. In this they acted without authority and beyond their jurisdiction; and their rejection of his vote made them liable to him for the damages resulting to him therefrom.
The inspectors of election have the right to ask a person who offers his vote, when challenged, after questioning him on the matters specially designated, such other questions "as may tend to test his qualifications as a resident of the town or ward, citizenship and right to vote" at the poll where he is challenged, and it may be conceded that they act in a quasijudicial character in putting "such other questions" and in determining whether he answers fully the questions which shall be put to him; but their jurisdiction and authority are limited to an inquiry in reference to his place of residence and qualifications as an elector, within the above mentioned requirements and provisions of the constitution. It appears to have been claimed in the court below that the twenty-first section of the act of Congress (chap. 79 of the Laws of 1865) entitled "An act to amend the several acts heretofore passed to provide for the enrolling and calling out the national forces, and for other purposes," approved March 3, 1865, deprived a deserter from the military service of the United States from exercising any rights of a citizen thereof, and that therefore the examination of the plaintiff in relation to that fact was authorized. This claim cannot be sustained. The provision, assuming it to be valid, could only apply to deserters duly convicted as such by a court of competent jurisdiction; and there was no proof offered or allegation made of such conviction. The challenge of the plaintiff's right to vote, on the ground of desertion, without the production of the record of his conviction of the offence, was consequently no more than a mere charge of its commission. It should have been disregarded, and did not justify the questions which he refused to answer. They would, indeed, have been unauthorized and improper, even if the challenge had been made on the ground of an actual conviction. The statute, under which they acted, provided as follows: "If *Page 426 the person be challenged, as convicted of an infamous crime, he shall not be required to answer any questions in relation to such alleged conviction; nor shall any proof of such conviction be received, other than a duly authenticated record thereof." (Sec. 23.)
It thus appears that the inspectors, in asking the questions put to the plaintiff, and in refusing his vote because he would not answer them, acted in relation to a subject over which they had no jurisdiction, or any right to institute an inquiry. I will add that I have not found any statute of this State that required or authorized it.
The provision of the law (chap. 194 of the Laws of 1867) which was held to be unconstitutional and void by the Court of Appeals, in Green v. Shumway (39 N.Y., 418), and which appears to have been relied on as a justification of the action of the defendants in this case, was restricted in its operation to an election appointed to be held for the purpose of choosing delegates to meet in convention on the first Tuesday of June, 1867, to revise the Constitution of this State and to amend the same. The oath referred to in the testimony of one of the inspectors as that familiarly known as the "test oath," was, according to my understanding and construction of his evidence, the oath prescribed by that act, and was not applicable to voters at the general election at which the plaintiff's vote was rejected. The views above expressed show that the plaintiff was wrongfully deprived, by a majority of the inspectors, of his right to vote. The matter which was stated to be the ground of the challenge did not affect his qualification as an elector, and consequently, the questions asked of him in relation thereto were not within their jurisdiction, or in the discharge of their duty as inspectors.
This conclusion renders it unnecessary to decide or consider the question, much and ably discussed on the argument, whether inspectors, after having obtained jurisdiction of the subject by the challenge of a person's right to vote, can be held liable or responsible in a civil action for erroneously, in the exercise of their judgment, rejecting his vote on the *Page 427 ground that he had refused to answer, either entirely or fully, any of the questions which they were required by the law to ask, or any other which they, in their opinion, deemed pertinent, and as tending to test his qualification as an elector and his right to vote. The question is not involved or raised by the facts in this case, and an expression of opinion thereon is consequently not proper, and would be useless.
The judgment must, on the ground stated, be reversed, and a new trial must be ordered, costs to abide the event.