People ex rel. Williams v. Cicott

Christianoy J.

I concur entirely with my brother Campbell in the views he has expressed as to the slips which were in controversy in this cause, and the mode in which the intention of the voter must be thereby expressed. I concur also in holding *310that the discrepancy between the inspectors’ certificate and the re-count of the votes in Dearborn, was-(owing to the careless manner in which the ballots were kept,) properly left to the jury.

With reference to those ballots in which the Christian names of the respective candidates were expressed only by initials, I concur in adhering to the rule established in People v. Tisdale, 1 Doug. 59, yet I am compelled to say that but for that decision, I should have been disposed to hold that, upon principle, extrinsic evidence might be given tending to show for whom the vote was intended; as that the candidates were in the habit of thus writing their names; that they were as well known, respectively, by the name of E. V. Cicott and Gr. 0. Williams,, as by Edward V. and Gurdon 0.; that they were opposing candidates at the election for the same office, and that no other person of the same surname and the same initials was known to be running for the office. This is in strict accordance with the rule which prevails in the construction of all other written instruments, which are to be read in the light of the surrounding circumstances. But the rule in People v. Tisdale, was recognized in People v. Higgins, 3 Mich. 233, and has now been the settled law of this State for a quarter of a century. This rule has the merit of simplicity and certainty, of being easily understood and applied, leaving no room for discretion in the inspectors ; and, as a general rule, is equally fair and just in its application to all parties. I do not therefore think it wise to disturb it by establishing another rule which to me may seem more sound in principle, but which in its practical application, might not be likely to produce any fairer results. The Legislature have full control over this question, and may change the rule when the public sentiment shall seem to require it.

I concur also in holding that it is utterly useless to inquire into the qualification of voters, when the nature of their votes, or the candidates for whom they have voted *311cannot be ascertained; and I fully agree with my brother Campbell that no qualified elector can be compelled to disclose how he has voted. But I cannot go to the extent of holding that no inquiry is admissible in any case into the qualification of voters, or the nature of the votes given. Such a rule, I admit, would be easy of application, and as a general rule might not be productive of a great amount of injustice, while the multitude of distinct questions of fact in reference to the great number of voters whose qualification may be contested, is liable to lead to some embarrassment, and sometimes to protracted trials, without a more satisfactory result than would have been attained under a rule which should exclude all such inquiries. Still I cannot avoid the conclusion, that in theory and spirit our constitution and our statutes recognize as valid those votes only which are given by electors who possess the constitutional qualifications; that they recognize as valid such elections only as are effected by the votes of a majority of such qualified electors. And though the election boards of inspectors and canvassers, acting only ministerially, are bound in their decisions by the number of votes deposited in accordance with the forms of law regulating their action, it is quite evident that illegal votes may have been admitted by the perjury or other fault of the voters; and that the majority to which the inspectors have been constrained to certify and the canvassers to allow, has been thus wrongfully and illegally secured. And I have not been able to satisfy myself that in such a case, these boards acting thus ministerially, and often compelled to admit votes which they know to be illegal, were intended to constitute tribunals of last resort for the determination of the rights of parties claiming an election. If this were so, and there were no legal redress, I think there would be much reason to apprehend that elections would degenerate into mere contests of fraud.

The person having the greatest number of the votes of legally qualified electors, it seems to me, has a constitutional *312right to the office; and if no inquiry can be had into the qualification of any voter, here is a constitutional right depending upon a mode of trial unknown to the constitution, and as I am strongly inclined to think, opposed to its provisions. I doubt the competency of the Legislature, should they attempt it, which I think they have not, to make the decision of inspectors or canvassers final under our constitution.

The extent of the inquiry into the qualification of voters, and how they have voted, may be limited or qualified by other provisions of the constitution; and I think it has been thus practically limited or modified by that provision of the constitution which requires all votes to be given by ballot. The object of this requirement, when considered with reference to the history of our country and the whole theory of popular governments, where suffrage is practically universal, is too plain to be misunderstood. It was to secure the entire independence of the electors, to enable them to vote according to their OAvn individual convictions of, right and duty, without the fear of giving offense or exciting the hostility of others. And with this view the right is secured to eveiy voter of concealing from all others, or from such of them as he may choose, the nature of his vote, or for what person or party he may have voted. This important object, vital as I think it is in our system of government, would be substantially defeated if the voter could be compelled to disclose, even in a court of justice, how he has voted. The constitution, and our statutes which have followed out its spirit, have thrown over the voter an impenetrable shield, under which he may keep the secret of his vote until he shall see fit to disclose it. The statute has taken pains to guard this secret from the prying curiosity of others, at the polls, when from the necessity of the case the outside of the ballot must be seen. The ticket is required to be handed to the inspector folded, and the inspector is required to deposit it in the box, without opening or *313permitting it to be opened. And it -would effectually defeat the object of this statute if any evidence were allowed to be given of the appearance of the outside of the ballot when thus folded, for the purpose of raising an inference how the elector voted. But there is still another objection to this species of evidence. The fact that the ticket had the appearance of a Democratic or Republican ticket, does not, when so many candidates are voted for on the same ticket, even tend to show that the elector voted for any particular candidate, especially as it appears that great numbers of the tickets on both sides were “split tickets,” having slips with the names of candidates of the opposite party from that indicated by the outside of the ticket.

How an elector may have voted is, under the constitution and the law, a fact which no man has a right to learn, in this or any other manner, till the elector himself may choose to make it public. No man can acquire the right to disclose it without his consent; and least of all, can any knowledge surreptitiously obtained, be given in evidence, as by looking over the voter’s shoulder when he is preparing his ticket, or showing it to a friend; or by an inspector in violation of the statute receiving a ticket unfolded and reading its contents, as in the case-of Oabot.

It must also be borne in mind that by the very spirit of the system of voting by secret ballot, the legal right of deceiving others as to the vote, is implied; and, therefore, as well as because it would be mere hearsay, his mere confession or admission to another person must be incompetent evidence.

But careful as the law has been to guard the secret of the elector’s vote till he sees fit to disclose it, that secresy is, it seems to me, in its nature and purpose, a personal privilege only; and may be waived by the elector at his option. He may, if he see fit, testify in court to the vote which he has given. And though the statute requires the voter to hand in his ballot folded, I am not entirely satisfied *314that it is not competent for him at the time of voting to waive the privilege of secresy; as, for instance, by coming up to the polls and in the presence of the inspectors and bystanders, declaring his intention to make his vote public; openly exhibiting his ticket, publicly folding it, and handing it in. In such a case there may be good ground for holding that he has thereby waived the privilege of secresy.

It is true that it can seldom be a question of any importance, in a case like the present, how a person possessing the constitutional qualifications of an elector has voted; since generally the vote of such person is legal, and must be counted at all events. Still there may be cases in which a person possessing the constitutional qualifications can not legally vote; as when he has neglected to register according to the statute.

The question of privilege becomes much more important when applied to the case of a voter whose qualifications are denied. It is clear that this privilege of secresy is given only to those who are recognized by the constitution as electors. And whenever the person who has voted admits that he was not constitutionally qualified, or the fact clearly appears, so that it no longer remains as a question for the jury, he can claim no protection from this privilege. But when his qualification is a disputed question of fact, which is to be determined by the jury in rendering their verdict, he can not be compelled to disclose his vote.

As to the excess of nine ballots in the Sixth, and seven in the Seventh Ward, beyond the number of votes shown by the poll lists, we are all agreed that, for this excess, the whole vote of these wards is not to be rejected. The electors should not be disfranchised for this error of the inspectors or clerks.

But I can not concur with my brother Campbell that because this excess is greater than the majority for either candidate for sheriff, the whole excess must, in effect, be *315doubled, by deducting tbe full number from tbe vote of each.

It was tbe duty of the inspectors under tbe statute— Qomp. L, §§ 61 and 62 — to have discovered this excess before canvassing the votes or opening tbe ballots; and they were required to draw out from tbe box a number of ballots unopened equal to tbe excess. This provision of tbe statute evidently proceeds upon tbe doctrine of tbe calculation of chances — tbe probability that tbe ballots drawn out will be apportioned among tbe respective parties and candidates substantially according to their respective numbers of votes.

This duty having been neglected by the inspectors, it devolves, I think, upon the court in a trial of the right to an office under this section, to apply to this excess of votes substantially tbe same rule as that prescribed for the inspectors; in other words, a rule which will distribute this excess among the opposing candidates with tbe same degree of certainty, and in tbe like proportion which the rule prescribed by the statute was calculated to produce.

Thus apportioned, taking the two wards, seven and a small fraction would fall to the share of Williams, six and a larger fraction to Cicott, and one and a large fraction to Allison. But, as no fraction of a vote can be counted, eight of this excess must be deducted from the vote of Williams, and seven from that of Cicott.

It remains only to apply these principles to the facts of this case.

Taking tbe inspectors’ returns, as corrected by tbe recount, without reference to any of the specially disputed ballots, and without reference to the qualifications of any voter, and tbe total vote for relator is 6,530; respondent’s, 6,515'; relator’s majority, 15. In, this calculation one vote is taken from respondent for a double ballot in Grosse Point, erroneously counted as one, when both should have been rejected; and one is added to his vote in Sumpter, *316for a ballot wrongfully rejected, because folded in a ballot for the constitutional amendment. Deducting now, from relator’s vote eight, and from respondent’s seven, for their respective portions of the excess in the Sixth and Seventh Wards, and relator’s majority will be reduced to fourteen.

Supposing the jury to have found (as it was competent for them to find) in favor of the inspectors’ certificate, instead of the recount in Dearborn, this would take from the relator eight votes, leaving his majority but six. From this deduct the following votes, shown by the testimony of the voters themselves, to have been given for the relator, and who may have been found by the jury to have been disqualified, viz: Chase, who only says he voted “ Republican ticket,” but who, from the circumstances and the course of examination, would probably have made the exception as to sheriff, if he had voted for the candidate of the opposite party; Burtis, who says directly that he voted for Williams, and Edwards, who only says he voted “Republican ticket,” but admits that if he had voted against Williams he would have been likely to remember it. These three votes deducted from relator’s majority of six, reduce it to three. • These are all the voters claimed to have been unqualified and to have voted for Williams, who are shown by any legal evidence to have voted for him. On the other hand, it appears clearly from the evidence, and is not controverted, that Brennan, who swears he voted for Cicott, was not a voter, not having been a resident of the state for the three months next preceding the election. There was no evidence before the jury from which they could have found him a voter. This was so clear that the respondent’s counsel did not contest the point. This, therefore, reduces respondent’s vote by one, making relator’s majority four.

Allowing, therefore, that the jury upon every contested point in the case, resolved every doubt arising upon all the competent evidence in the case in favor of the respondent and against the relator, the latter was elected by four *317majority. There was no competent evidence in the case to warrant the verdict given, or upon which it can be sustained.

The verdict should, therefore, be set aside and a re-trial ordered. But as the case has already been once tried in the Wayne Circuit, and its facts may have become matters of public notoriety there; and since the case was sent there for trial one of the counsel in the case has become the judge of that circuit, and no other judge is required by law to hold a court there for the trial of this case, and it is desirable that an early trial should be had, we have concluded to send the issues to the Circuit Court for the county of Washtenaw'for trial.

Graves • J. concurred. Cooley Ch. J.

I agree fully with all that is said by my brothers Campbell and Christiancy as to the inadmissibility of evidence to show the nature of an elector’s ballot, in any case where it is not first shown that he waived his constitutional privilege of secrecy. And I concur generally in the conclusions of my brother Christiancy upon other points, except as I shall otherwise indicate.

I regret that my brethren are disposed to still follow the case of People v. Tisdale, 1 Doug. Mich. 59, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law; and no court outside the state has ever followed it. It is true, as my brethren have remarked, that it lays down a rule easy of application, and one that is no more unfair to one candidate than to another; but it does not seem to me to be sufficient reason for retaining an unsound rule that it is impartial in its infliction of injustice. In every case where it becomes important to apply the rule at all, it has the effect to defeat the clearly expressed will of the electors; *318and although, if we were to consider voters only as aggregated in two political parties, there might be no reason to complain of it, because it would be likely to defeat one party as often as the other, yet the considerations are very different when we reflect that election contests are between individuals, and that that person is irremediably wronged who, having received a plurality of the suffrages of his fellow citizens, is deprived of his office by the application of some arbitrary and technical rule. It can be little compensation to him that, in the next election, a similar application of the rule deprives a political opponent of an office to which he is fairly chosen, and thereby balances the accounts between the parties by doing equal injustice to an individual member of each. All rules of law which are applied to the expression, in constitutional form, of the popular will, should aim to give effect to the intention of the electors ; and any arbitrary rule which is to have any other effect, without corresponding benefit, is a wrong, both to the parties who chance to be affected by it, and to the public at large. The first are deprived of their offices, and the second of their choice of public servants.

The chief argument in favor of the rule of People v. Tisdale is, that ballots cast for parties by their initials only are so uncertain that they cannot be applied without resort to extrinsic and doubtful evidence, to ascertain the voter’s intention, and therefore should be rejected. But nothing can be more fallacious. It frequently happens that a man is better known by the initials of his baptismal name, than by the name fully expressed; simply because he is not in the habit of writing his name in full, or of being thus addressed in business transactions. I think it highly probable that that is the case with each of the parties before us. In political conventions, or legislative bodies, no one deems it important to write the full name of a candidate for whom he is voting, and no one ever thinks of challenging the vote for uncertainty. ITnder the application of this rule to the *319present case, the curious spectacle will be exhibited, of votes cast for E. V. Cicott and G. 0. Williams being rejected because the courts cannot determine for whom they were intended, while not a single person in the county of Wayne has the slightest doubt that they were cast for Edward V. Cicott and Gurdon 0. Williams, the opposing candidates at this election. Thus the courts are required to close their eyes to what everybody else can see distinctly.

The fallacy of the rule consists in its assuming that a certain form of ballot clearly expresses the voter’s intention, while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence. But in fact no ballot can identify with positive certainty the persons for whom it is cast; and notice must be taken of extrinsic circumstances in order to apply it. It is always possible that other persons may reside in the election district having the same names with some of the candidates; but neither the canvassers nor the courts ever assume that there is any difficulty in these cases, but they count the votes for the persons who have been put forward for the respective offices. And in some cases where an element of uncertainty is introduced into the ballot unnecessarily, as by the addition of an erroneous designation, the courts resolve the difficulty by rejecting the erroneous addition, and counting the ballot for the person for whom it was evidently designed.

If the rule were one which the canvassers could apply in every case, and which left nothing open for controversy in the courts afterwards, it would be less open to objection; but it is not of that character. No one doubts that if votes had been cast in this case for Edward Cicott, or Edward B. Cicott, or Edward Cicott, junior, or Edward Oicott with any other mistaken addition, they must have been counted for the respondent on the facts appearing in this case. — People v. Cook, 14 Barb. 259, and 8 N. Y. 67; Milk v. Christie, 1 Hill, 102; Bratton v. Seymour, 4 Watts, 329. Such ballots would be allowed because the error of *320the voter is not so great, when tbe facts surrounding tbe election are considered, as to leave his intent in real doubt; yet no one can fail to see that in every one of these cases the room for doubt is greater than in the case of ballots for E. Y. Cicott, and that whatever doubt exists is referred to courts and juries for solution in the one case as it would be in the other. The rule therefore rejects a certain class of ballots on reasons which apply with at least equal force to others which are admitted. And its indefensible character is still more apparent when we consider that abbreviated ballots are received, as well as those which are mis-spelled; so that a vote for Ed. Sekut would be counted, though the ÍM. is an abbreviation for several other names besides Edward, and no one would suppose that by this name the person intended was as distinctly pointed out as if the name had been written as it commonly is in business transactions.

The true rule upon this subject I conceive to be this: Evidence of such facts as may be called the circumstances surrounding the election — such as, who were the candidates brought forward by the nominating conventions; whether other persons of the same name resided in the district from which the office was to be filled, and if so, whether they were eligible to the office and were publicly named for it, and the like — is always admissible for the purpose of aiding in the application of any ballot which has been cast: and where the intent of the voter as expressed by his ballot, when considered in the light of such surrounding circumstances, is not doubtful, the ballot should be counted and allowed for the person intended. This rule is just and easy of application; and it has the merit of harmonizing with the rules applied to other written instruments, which I think is no slight recommendation. It is always objectionable and mischievous to lay down different rules for classes of cases which all come within the same reasons.

On the question whether it is competent in this proceeding to inquire into the qualifications of those who voted, I *321concur with, my brothers Christiancy and Graves, but solely on the ground that I think it more important that a rule should be laid down, than that that rule should be either one way or the other.

The only remaining question which I deem it important to refer to, is as to the effect of the failure of the canvassers in two of the wards of Detroit to draw from the ballot box the surplus of votes over the number which should have been found there as shown by the poll-lists. The county canvassers rejected the returns from those wards because of this irregularity. This they had clearly no authority to do. Their duties in canvassing are ministerial, and they are to receive the returns transmitted to them, if in due form and from the proper source, as correct, and to ascertain and declare the result as shown by such returns, without attempting to inquire into and settle any question which may lie back of those returns and affect the result. Ex parte Heath, 3 Hill, 42; Brower v. O’Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413; People v. Jones, 19 Ind. 357; Bacon v. York County Commissioners, 13 Shep. 491; Mayo v. Freeland, 10 Mo. 629 ; Thompson v. Circuit Judge, 9 Ala. 338; People v. Kilduff, 15 Ill. 492; O’Farrell v. Colby, 2 Minn. 180; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Dishon v. Smith, 10 Iowa, 212; Attorney General v. Ely, 4 Wis. 420; State v. Governor, 1 Dutcher, 331; People v. Cook, 8 N. Y. 67. The cases on this point are too numerous and uniform to be further cited.

Such canvass and declaration, however, would not be conclusive upon any party who might be injuriously affected by any antecedent irregularity. The question here is whether any one is injuriously affected; and this involves a consideration of the purpose of this drawing as well as of the probable result had the statute been complied with.

I do not suppose that the statute, in providing for this drawing, proceeds upon the idea that because a surplus of ballots appears there is necessarily fraud. The keeping of poll *322lists is required as a guard, cheek and protection, and the drawing is provided for because it is supposed, when the count of the boxes and lists disagrees, the latter are more likely to be correct. But any one who has ever watched the conduct of an election in a populous precinct, where the clerks are very busily employed through the day in writing down the names of voters as they are called off to them, has not failed to observe how liable the call is to be in advance of the writing, so that it is no matter of surprise when a name fails to be taken down. And where such a failure occurs, it is quite likely to be made by both clerks, since those officers sit side by side and rely more or less upon each other’s lists as they proceed. Nevertheless when the discrepancy occurs, the poll lists must govern, as least liable to err, and least open to fraud; and the statute makes the best disposition of the case which the wisdom of the Legislature has been able to devise.

What is that disposition? Here it appears there are a number of ballots in the box which the statute presumes ought not to be counted. Tet there is no mark upon them, and no possible way of distinguishing them from the ballots duly cast. It is quite impossible, therefore, to separate the good from the bad. Shall the election be declared void for that reason? This would be simply to disfranchise the electors because in some unexplainable manner a fraud, accident, or mistake has occurred for which they are in no way responsible, and which may not at all affect the result. The statute says they shall not be thus unjustly disfranchised, but that the votes shall be disposed of by'a rule which will operate as equally and justly between the parties as is possible under the circumstances. That rule is based upon the doctrine of probabilities. It directs the drawing from the box of a number equal to the surplus found there, and the equalization of the count of the box and the lists in that mode.

*323Now it is apparent that in this drawing the chances are very much greater that ballots duly cast will be drawn and destroyed than that the ballots wrongly in the box will be drawn, for the plain reason that the legal votes will always greatly exceed the surplus in number, unless there has been gross fraud on the part of the inspectors. If the surplus is one in a vote of a hundred, the probabilities are ninety-nine to one that the vote drawn will be one of those which was regularly and legally cast, and that thereby a legal voter will be deprived of his suffrage. Nevertheless, as each ballot is usually one of a number designed to be allowed to particular candidates and counted against others given to other candidates, the drawing may still work no injustice, since each candidate will probably lose by it a number proportioned to the relative number of ballots appearing for him in the box, and thus the relative proportions will be preserved. The actual drawing might differ from the antecedent probability; but this is the theory which the statute proceeds upon, and the variance can seldom be great.

Now the relative proportion of votes cast for the two candidates in the two wards in question was such that, had the drawing taken place, Mr. Williams would probably have lost by it one more vote than Mr. Oicott, and no more. The probability is, therefore, that the election, as between these two candidates, has not been affected by the irregular action of the inspectors, beyond a single vote. Can it be held void for this irregularity if the actual difference in favor of Williams is more than a single vote?

Upon this point I refer to the following decisions where, in a great variety of cases, it has been held that statutory provisions prescribing the conduct of elections are to be regarded as directory only, except where they are of such a character that a failure to comply with them would have the effect to prevent or obstruct the complete expression of the popular will, or the production of satisfactory evidence thereof.— People v. Cook, 14 Barb. 259 and 8 N. Y. 67; People *324v. Vail, 20 Wend. 14; Clifton v. Cook, 7 Ala. 114; Dishon v. Smith, 10 Iowa, 212; Attorney General v. Ely, 4 Wis. 420; State v. Jones, 19 Ind. 356; People v. Van Cleve, 1 Mich. 65; People v. Higgins, 3 Mich. 233; People v. Bates, 11 Mich. 362; People v. Sackett, 14 Mich. 320; Taylor v. Taylor, 10 Minn. 112; People v. McManus, 34 Barb. 620; Whipley v McCune, 12 Cal. 352; Piatt v. People, 29 Ill. 54; Ex-parte Heath, 3 Hill, 42; Lanier v. Gallatas, 13 La. An. 175; 2 Strong, Petitioner, 20 Pick. 492.

And even where the statutory provisions are mandatory, they do not necessarily defeat an election actually held, if the means exist of determining the result. A particular act or proceeding may be rendered void, and the election be upheld notwithstanding.

The principle in all these cases is, that an election is not to be set aside because of air irregularity, unless it appears that that irregularity affected the result. In well reasoned cases where the election was disputed on the allegation that the polls were kept open for the reception of votes after the hour when the statute directed them, to be closed, it has been declared that, on general principles, no election could be made void on such grounds, unless it appeared that the votes received after the legal hour of closing changed the result. — Pratt v. People, 29 Ill. 72; People v. Cooke, 14 Barb. 296; Same case, 8 N. Y. 91. And in Lanier v. Gallatas, 13 La. An. 176, where it was charged that fourteen illegal votes were received, and that “if the said illegal votes had been rejected, it would in all probability have changed the result in favor of the petitioner,” the court hold the averment insufficient, and say that “to contest an election there should be an averment that the illegalities charged did alter the result; not that it was probable that the result might have been changed.”

If these authorities are sound — as they unquestionably are — we can not be warranted in declaring an election void *325for an irregularity wbiob probably did not change the result. The courts have always repelled “the idea that the will of the electors, plainly expressed in the forms prescribed by law, can be defeated by the negligence, mistake, or fraud of the officers appointed to register the result of an election.” People v. Cook, 14 Barb. 327; People v. Vail, 20 Wend. 14.

Suppose it be conceded that these sixteen votes are illegally in the boxes, and that they can not be distinguished and separated, the case then is no different from what it would be had these votes been cast by sixteen unqualified voters who refused to disclose for whom they voted. In such a case are the votes to be counted, first against one candidate, and then against the other, in order, if possible, to defeat both? If so, then an important election will seldom occur in close districts where, as to some officer there will not be a failure to elect. Sqch a rule could be based upon no reasons of justice or public policy which suggest themselves to my mind, and I do not discover anything in in the authorities to warrant it. I refer, in addition to the other cases cited, to First Parish in Sudbury v. Stearns, 21 Pick. 148, and Blandford School District v. Gibbs, 2 Cush. 39, as bearing upon this question. Ex-parte Murphy, 7 Cow. 153, covers the whole ground of the present case on this point. The majority in that case was only two, and it affirmatively appeared that two votes had been put into the box by unknown persons in the names of electors who were dead. It was not known for whom they were cast. On motion for leave to file an information, the court say: “ The motion must be .denied. For aught that appears, the spurious ballots were for the ticket which was in the minority. To- warrant setting aside the election, it must appear affirmatively that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes were received, will not vitiate an election. If this rule were otherwise, hardly an election in the state could be sustained.” *326The general rule is thus applied to a case where the fraudulent vote equals the whole majority; in which particular alone could the case now before us be distinguished from many others I have cited.