drew up the opinion of the Court. It is perhaps peculiar to Massachusetts, that here the law provides, that if any person duly qualified to vote, whose name is upon the list of voters, and who has, in other respects, complied with the requisitions of the law, is prohibited from voting, by the selectmen or other officers, whose duty it is to superintend elections, he shall be considered as deprived of a valuable right, and may maintain an action therefor, without being required to prove that such officer acted from malice, or from any unlawful or unjustifiable motive. This was long since held, *310upon the ground, that it will afford the best security to this high and important privilege, that without it, a voter might often be refused his privilege upon slight and frivolous grounds, but yet under such circumstances, as to render it difficult, if not impossible, to prove actual malice in the officers superintending the elections. Besides, if it should appear, that the plaintiff had a right to vote, but the selectmen, thtough mistake or error of judgment, and without malice, should refuse to receive his vote, it would be a ground for very small, perhaps only nominal damages ; and the object of the action would be accomplished, by vindicating his right. But if such vote were refused maliciously and wilfully, or from any unlawful motive, it would be a proper case for higher damages. But whatever may have been the grounds of the decision originally, the rule of law is now well established and understood.
It is manifest from this view of the law, authorizing a voter to maintain an action, without showing any wrongful intention or corrupt motive on the part of the officers presiding at elections, that it is incumbent on him to prove clearly, that he has the right to vote, at the time when his vote is tendered, and that he has been prohibited from voting by the presiding officers.
Conformably to these views we think the jury were rightly instructed, that the plaintiff was entitled to recover, if the defendants refused the plaintiff’s vote, whatever might be their motive, and whether it was the result of mistake or error in judgment, or wilful and malicious.
But the principal question arises upon the other question presented by the facts detailed in the report, which is, whether the defendants, by the method of proceeding, adopted by them, did fail to comply with the terms of the statute, and thereby deprive the plaintiff of his right of depositing his vote in the ballot box.
The statute then in force, directing the mode of voting, was as follows : <£ No vote shall be received by the presiding offi-'
cer, &c. unless deposited in the ballot box, by the voter in person.” Revised Stat. c. 4, § 4.
The primary object of this provision undoubtedly was, to-prescribe that the voter should attend and vote personally, and *311that no proxy or substitution of any sort, should dispense with this requisite. But the terms of the statute are plain and unequivocal, and the voter, has a right to insist that the officers shall conform to them in their proceedings.
The mode adopted by the selectmen of Lynn, for reasons which appeared to them satisfactory was, to place a large box on the table behind them, for the reception of votes, beyond the reach of voters, to take the ballot from the voter, and, after seeing the name checked, to deposit it in this box. Whether this method was conformable to the course prescribed to them by the statute or not, it was well calculated to prevent fraud by giving more than one vote, for which it was adopted, and if acquiesced in and assented to by any individual voter, it could be no violation of his rights.
But the plaintiff did object to it, and, had the defendants persisted in refusing to permit the plaintiff to vote in any other way, than by handing his vote to the selectman, who offered to take it, they could not be justified in such refusal, and it would have been, in legal effect, depriving the plaintiff of his right of voting upon that occasion. He had the right, as claimed, of depositing his vote in-person, in the ballot box. But upon his making this claim and insisting on this right, the selectmen did offer him a box, to deposit his ballot in, which was kept at the place, had, on some former occasion, been used as a ballot box, and for aught appears was a suitable and proper one. It is for the selectmen, on such an occasion, to determine what box shall be used, whether more than one, or whether one or more small boxes shall be used to receive the votes, and a larger one to serve as a place of deposit; and the box used for such purpose is, by such use, made the ballot box.
But the defendant insisted that he had the right to deposit his vote in the general ballot box, where other voters’ ballots were deposited. If the claim was to deposit his vote, where other citizens had deposited theirs, and if he complains of being deprived of a right accorded to others, still he had no right to claim, that the large box should be taken from its place and presented to him, because no other voter had personally placed his vote m that box; and if that is to be deemed the ballot *312box which is presented to voters, to deposit their ballots m, personally, then this large box was not the ballot box. Another box was necessarily presented to the plaintiff, because he was the first, who had so insisted on the right of depositing his ballot, personally in the box. In this respect it is like presenting the box to the first voter, who comes to the selectmen to give in his ballot. It is then necessarily an empty box ; but it is the ballot box, because provided for use as such, by the proper officers.
The conduct of the plaintiff, in holding his hand closed tight, and insisting on placing his vote in the box used as the general deposit, was such as to warrant some vigilance on the part of the selectmen, and proper precautions to prevent illegal voting.
On the whole, the Court are of opinion, that the box offered by the selectmen, was the ballot box, in which the plaintiff might have deposited his vote, and that in the absence of all proof of malicious or wilful design to deprive the plaintiff of his rights, upon the facts stated in the report, the jury should have been instructed, that if those facts were proved to their satisfaction, there was no unlawful refusal to receive the plaintiff’s vote, and, therefore, that his action could not be maintained.
Had there been proof that the mode adopted by the defendants was so done, with a view to hold the plaintiff up to ridicule, or in any respect to oppress or injure him in the exercise of a lawful right, it would have been evidence of malice, and would have presented the question in a very different aspect. But such a case would present a question of fact to be decided by the jury upon all the facts and circumstances of the case.
Verdict set aside and a new trial granted,