
    Hugh J. Keenan vs. Davis Cook et als. Same vs. Same.
    Boards of canvassers sitting to correct voting lists exercise judicial functions.
    
      Query. Whether they are liable in a civil action for striking a name from the voting list or for refusing to place a name on it.
    But if they are so liable :
    Meld, that they are to judge of the proof prescribed by Gen. Sfcat. R. I. cap. 7, § 14, and that in the absence of evidence showing that they struck a name from the voting list without proof of disqualification which was satisfactory to them, judgment must be given in their favor.
    
      Gen. Stat. R. I. cap. 7, § 21, provides that the canvassers shall not be answerable for refusing to place on the voting list an omitted name “ unless they shall be furnished with sufficient evidence of the omission and of the qualifications as a voter of the person omitted: ”
    Held, that the canvassers were to judge of the sufficiency of the evidence.
    In an action against them for refusing to place a name on the voting lists:
    
      Held, that in the absence of evidence showing that they decided dishonestly, or with a wilful purpose to deprive the plaintiff of his rights, although their decision was precipitate and erroneous, judgment must be given in their favor.
    Trespass on the case. Appealed from the Court of Common Pleas. Heard by the court.
    
      February 12, 1878.
   Dttreee, C. J.

These are actions against tbe defendants as members of tbe board of canvassers of tbe town of Cumberland, for tbe years 1876 and 1877. Tbe declaration in tbe first action alleges that tbe board beld a meeting in 1876, for the purpose of correcting tbe list of persons qualified to vote in voting district No. 2, in said town, and, at said meeting, struck tbe plaintiff’s name from the voting list, where it was and bad been for years, without any proof being presented to them that be was not qualified to vote, whereby he was deprived of bis right to vote, &c. Tbe declaration appears to be framed in view of Gen. Stat. R. I. cap. 7, § 14, which provides that “ no name shall be stricken from tbe voting list by any board of canvassers, unless proof shall be presented to said canvassers that such name is tbe name'of a person not qualified to vote, or who may not be qualified according to tbe provisions of this title.” § 20 imposes a fine upon every member of tbe board often ding, if tbe board “ shall wilfully and fraudulently reject and cause to be erased from said list tbe name of any person entitled to vote.” There is no express provision for any civil action against tbe board or any member of tbe board. The functions of tbe board are clearly judicial. See § 18, and Weeden v. Town Council of Richmond, 9 R. I. 128. But, supposing tbe defendants are liable to-a civil action, is tbe evidence submitted to us such as entitles tbe plaintiff to judgment ?

Tbe testimony submitted shows that tbe plaintiff’s name was on tbe voting list among tbe registry voters; that at a meeting of tbe-board, one John F. Clarke moved to have it struck off, and being sworn, testified that be knew tbe plaintiff was born in Scotland, and that thereupon, by vote of tbe board, tbe name was struck from tbe list. Tbe testimony also tends to show that evidence was offered to the board on the part of the plaintiff, that the plaintiff’s father was naturalized after the plaintiff came to this country, and during his minority, which would have the effect of making the plaintiff a citizen. It is not clear that this evidence was brought distinctly to the notice of the board ; but, if it was, does it follow that the board violated the statute in erasing the name ?

The plaintiff contends that nothing short of absolute proof of his disqualification would justify the erasure, and that he is entitled to recover in this action if he was in fact qualified to vote, however well satisfied the defendants may have been that he was not qualified, by the evidence presented to them. He seeks to hold the canvassers under our statute to a stricter rule than is ordinarily applied to returning officers or inspectors of elections, though the canvassers are more unquestionably judicial functionaries ; for by the clear current of authority, both in England and in this country, a returning officer or inspector of an election is not liable civilly for rejecting a vote, unless the rejection is wilful and malicious as well as wrong. Ashby v. White et als. Ld. Raym. 938; Smith Lead. Cas. *342, and note; Harman v. Tappenden et als. 1 East, 555 ; Weckerly v. Geyer, 11 Serg. & R. 35, 39; Jenkins v. Waldron, 11 Johns. Rep. 114 ; Wheeler v. Patterson, 1 N. H. 88 ; Carter v. Harrison, 5 Blackf. 138 ; State v. Porter, 4 Harring. (Del.) 556; Rail v. Potts & Baker, 8 Hump. 225; Peavey v. Robbins, 3 Jones (N. Car.), 339 ; Morgan v. Dudley, 18 B. Mon. 494, 693 ; Bevard v. Hoffman, 18 Md. 479 ; Friend v. Hamill, 34 Md. 298. We do not think the rule for canvassers under our statute is any more stringent. The statutory provision that the canvassers shall not strike the name of any person from the voting list without proof that he is not or may not be qualified to vote, at most signifies only that they are not to strike it off without proof, which satisfies them that he is not or may not be qualified; for by § 18 it is provided that they may hear evidence in regard to the right of any person to have his name on the list, and that they “ shall decide upon the same.”

We think the testimony submitted to us in the first of the cases at bar does not show that the defendants struck off the name of the plaintiff without proof which satisfied them that he was not qualified to vote, and we must therefore render judgment in their favor.

The second action is ior refusing to add the plaintiff’s name to the voting list, though the plaintiff alleges he showed the defendants as canvassers that he was entitled to vote, and had the right to have his name on the list, and requested them to add it. The statute, § 21, provides that the canvassers shall not be answerable for refusing to place on the list the name of any person omitted, “ unless they shall be furnished with sufficient evidence of the omission, and of the qualifications as a voter of the person omitted.” What is meant here by “ sufficient evidence ” is, we think, evidence sufficient to convince the canvassers; that is to say, they are to decide whether it is sufficient or not. In order to maintain this action, therefore, it is incumbent on the plaintiff to show that the defendants refused to restore his name after hearing evidence sufficient to convince them, or which they thought sufficient to show that he had a right to have it restored, or, in other words, that they were not honest in their refusal. Now the testimony shows that the plaintiff appeared before the canvassers at one of their meetings in 1877, and requested to have his name added to the list, and supported his request by producing the certificate of his father’s naturalization, together with a copy of the law under which he claimed that he became a citizen, through the naturalization of his father. The defendants, however, appear to have believed either that the copy was not authentic, or that the law was not operative in Rhode Island. In consequence of this misapprehension they decided that the plaintiff, being a foreigner, must himself be naturalized to gain the right to vote, and consequently that the evidence furnished was insufficient. They decided the point erroneously and doubtless with too much precipitation; but we do not think the testimony shows that they decided it dishonestly, or with any wilful purpose of depriving the plaintiff of his just right. In this case, also, we must therefore render judgment for the defendants.

In these cases, however, we have a discretion in regard to the costs, the cases having been brought here by appeal. Gen. Stat. R. I. cap. 206, § 5. And we think it is proper, under the circumstances, not to give the defendants costs. We give them judgment without costs.

Charles JE. Gorman, for plaintiff.

Fdwin Aldrich, for defendants.

Judgment for defendants. No costs.  