
    The State vs. Arthur N. Smalt.
    In an indictment against A. S. as one of tlie Wardens of tlie city of Portland, for receiving, at a general election, tlie vote of a person whose name was not borne oil the list of voters, it was held to be necessary to allege that the act so done and committed was “unreasonable, corrupt or wilfully oppressive.’’
    
    The defendant as Warden of the 2d Ward in the City of Portland, was indicted for receiving at an election of Governor, Senators, and Representatives, the vote of one Daniel Merritt, when the name of the said Merritt was not borne on the list of voters for said Ward.
    A verdict of guilty being returned, Preble and Megquier counsel for the defendant, moved in arrest of judgment,
    1. “ Because there is not in and by said indictment any of- “ fence charged or alleged against the said Small for which he “ is liable to be indicted, either at common law or by statute.”
    2. “ Because it is not alleged in and by said indictment that “ the act with which the said Small is charged as constituting “ the offence alleged against him, was “ unreasonable, corrupt “ or wilfully oppressive.”
    The' 8th sec. of stat. of 1821, ch. 115, entitled “ An Act “ regulating Elections,” on which the indictment was founded, is in these words: “ If any person, who is by law authorised to “ preside at any meeting, or to receive votes at any meeting, “ which may be holden for the choosing of Governor, Sena- “ tors and Representatives to the Legislature, or any town “ officers, shall knowingly receive the vote of any person who “ is not qualified to vote agreeably to the Constitution and laws “ of this State, in choosing as aforesaid; such person so pre- “ siding or receiving any vote as aforesaid, shall forfeit and pay “ one hundred dollars,” &c.
    By stat. of 1831, entitled “ An Additional Act regulating “ Elections” it is provided, “ that, in no case, shall any town or “ plantation officer incur a penalty, or be made to suffer in “ damages, by reason of his official acts, or neglects, unless the “ same shall be unreasonable, corrupt or wilfully oppressive.”
    
      Preble and Megquier,
    
    cited the above statutes and also th'e Act incorporating the City of Portland, Spec. Laws, ch. 248, sec. 9, which provides that Wardens shall preside in ward meetings with the same powers, &c. as moderators of town meetings, and contended that there was no provision in the law subjecting them to the same liabilities and penalties. And 2, that the indictment was bad, it containing no allegation that the act charged as an offence was “ unreasonable, corrupt and “ wilfully oppressive.”
    Though the first statute does not contain these words, yet by the enactment of the last, the first is to be construed as if these words were incorporated into it. They constitute an integral part of the offence.
    It is a general rule, that, when an offence is created by statute, the indictment must use the statute language — and the use of language deemed equivalent to it is not permitted.
    
      Rogers, Attorney General.
    The words of the statute are, f‘ That if any person who is “ authorised by law to preside at any meetings,” &c. To him the penalty attaches. And by the City Charter the Wardens are made the presiding officers.
    
    There is no allegation in the indictment of corrupt motive, because there was no proof of its existence. But insist that no such allegation is necessary. The indictment follows the language of the 8th section, which is, “ if any officer Tcnow- “ ingly receive,” &c. The stai. of 1831, containing the words “ unreasonable, corrupt and wilfully oppressive” applies to general elections, and not to the election of town officers.
   Meltven C. J.

delivered the opinion of the Court.

The indictment in this case is founded on the 8th section of ch. 115 of the revised statutes, and the alleged offence is correctly set forth in the language of the above section. The two reasons assigned in the motion in arrest of judgment, are, 1 — ■ That the defendant is not liable to be indicted for the act charged to have been done and committed by him as Warden of the second Ward : 2, That it is not alleged that the act charged to have been so done and- committed by him, was unreasonable, “ corrupt or wilfully oppressive.” As to the first objection or reason assigned in arrest, we give no opinion. Our decision is founded on the second. The statute of 1821, above cited, is entitled “ An Act regulating Elections.” It is general: extending to the election of members of Congress, Electors of President and Vice President, and all State and town officers. The act of March 31, 1831, is entitled “ An additional Act regulat- “ ing Elections.” The fifth section of it contains, among other things, the following provision. “ That, in no case, shall any town or plantation officer incur a penalty, or be made to suf- “ fer in damages, by reason of his official acts or neglects, un- “ less the same shall be “ unreasonable, corrupt or wilfully op- “ pressive.” The section concludes with a proviso, which, however, has no connection with the point under consideration. The last section repeals all acts and parts of acts inconsistent with the provisions of the act. Both acts relate to the same general subject, and, of course, being in pari materia, may properly be considered, for the purposes of construction, as one act. The foregoing provision in the fifth section of the last act has essentially changed the character of the offence, described in the eighth section of the first act: by that section it was an offence “ knowingly to receive the vote of any person who is “ not entitled to vote agreeably to the Constitution and laws of “ the State in choosing” Governor, Senators and Representatives to the Legislature or any town officer. As by the fifth section of the last- statute, the official acts or neglects complained of, would not expose the officer to a penalty or damages, unless the same were unreasonable, corrupt or wilfully op- “ pressive,” such characteristics of the acts must be proved to produce the conviction of the officer charged; and whatever it is necessary should be proved, must be alleged. In a word, the facts, now necessary to constitute the offence, must be set forth in an indictment. In the indictment before us, such is not the case, and accordingly no judgment can be rendered on the verdict.

Judgment arrested.  