Gambar halaman
PDF
ePub

improperly or corruptly influencing the voters at an election are void, because against public policy.

§ 147a. All votes obtained by paying or agreeing to pay money, or property or anything of value to electors therefor, are to be rejected upon proper proof by the court or tribunal trying a case of contest. [State ex. rel. Hopkins vs. Olin, 23 Wis., 327. State ex. rel. Newell vs. Purdy, 36 do, 218.]

§ 148. It was held by the Supreme Court of Iowa that the giving, or offering to give facilities for the public convenience of the whole county, as an inducement to remove a county seat, or the offering of a public advantage to an entire community as an inducement for the members of such community to vote for such removal, does not constitute bribery, and will not avoid an election held to decide the question of such removal. [Dishon vs. Smith, 10 Iowa, 215.]

§ 148a. On the contrary, however, it has been held in Wisconsin, upon what appears very strong reasoning, that an offer by a candidate that he will, if elected, perform the duties of the office he is seeking for four hundred dollars per annum less than the law allows, is, though not bribery, conduct involving moral turpitude, and so far against public policy that votes thereby secured or obtained must be rejected. [State ex. rel. vs. Purdy, 36 Wis., 213.] And see also to the same effect the recent decision of the Supreme Court of Missouri in State vs. Collier, April term, 1879. [American Law Register vol. 18, p. 768.] Tucker vs. Aiken, 7 N. H., 140. Alvord vs. Collin, 20) Pick. 428, and note to State vs. Collier, supra.

§ 149. It is now well settled that a wager upon the result of an election is wholly void as being contrary to public policy, and that no action can be

maintained for its recovery. [Loyal vs. Myers, 1 Bailey, 486.] In a few of the older English cases actions upon wagers were allowed to be maintained. [Andrews vs. Herne, 1 Lev. 33. DeCosta vs. Jones, Cowp. 729. Lord March vs. Pegot, 5 Burr., 2802.] In none of these early cases, however, was the question of the immoral tendency of such transactions raised or considered. [16 East 158, do 162.] The more recent decisions in Great Britain, show a great desire and tendency, on the part of the judges, to get rid of the rule thus inadvertently adopted by their predecessors, and they show how much the more enlightened jurists of a later period, have been trammeled by it. They have endeavored to make a distinction between those wagers, the subject matter of which is perfectly innocent, and those in which it is not; and they seek to apply the early decisions sustaining the validity of a wager to those cases where the subject matter is of the former kind. But they forget that it is the wager itself which is immoral, and can never be innocent, and that, therefore, the subject matter of the bet can make no difference in its moral quality.

454.

§ 150. But in this country the decisions are uniform, and all adverse to the validity of any bet or wager of any kind or character whatever. [Bunn vs. Riker, 4 Johns, 426. Lansing vs. Lansing, 8 do, Vischer vs. Yates, 11 do, 28. Smyth vs. Mc Masters, 2 P. A. Browne, 182.] And in Lansing vs. Lansing, the Court held that if the loser had given his negotiable note for the amount of the wager the invalidity of the contract was a good defense against the indorsee of the note. But in that case the indorser of the note took it with notice, and the question as to the rights of an innocent purchaser of such

paper is not considered. Where the amount of the wager has been deposited with a third party as stakeholder, an action will lie against him by the loser to recover back the amount of the deposit. [Vischer vs. Yates, supra.] And see also Johnson vs. Russell, [37 Cal., 670] Reynolds vs McKinney, [4 Kansas, 94.] Jennings vs. Reynolds, [Ibid., 101.]

In Illinois it is held that if a negotiable note be given for an illegal wager, the illegality of the consideration is no defense to a suit by an indorsee for value. [Adams vs. Woodbridge, 4 Ill., 255. Sherlty vs. Howard, 3 Chicago Legal News, 230. Gregory vs. King, Ibid., 349.] And there seems to be no reason to doubt the correctness of these decisions.

§ 151. In case a foreign state is acquired or annexed to the United States, it does not come to us with its political organization intact, but upon the acquisition, it is incumbent up the United States to establish a government for su..State. Hence, it was held upon this ground, that the territory of New Mexico, which had been a duly organized territory of the Mexican Republic, could not, upon being acquired by the United States, proceed to elect a delegate to Congress in advance of the establishment of a territorial government therein. [Case of Hugh N. Smith, 1 Bart., 107.] The same rule would doubtless apply to any territory of the United States, and an act of Congress organizing the territory, and authorizing the inhabitants to choose a delegate, will, in all cases, be held indispensable to the validity of an election for delegate in Congress. See also case of A. W. Babbitt, of Deseret, [1 Bort., 116.] Case of W. S. Messervy, [ibid., 148].

§ 152. There has been of late years much earnest discussion in the courts of this country as to what

questions may be submitted to a popular vote. It is a well settled principle that legislative power cannot be delegated or transferred from the legislature to the people at large. Our governments are republican and not democratic. Laws must be enacted by the representatives of the people, and not by the people themselves. Nor can any State change this. Every State must have a "republican form of government," this is the requirement of the National Constitution, and it is complied with only by that form of State Government which vests the law-making power in the representatives of the people.— (Rice vs. Foster, 4 Harrington (Del.) 479. Brightley's Election Cases 3. Parker vs. Commonwealth, 6 Pa., State R. 507. Barto vs. Himrod, 8 N. Y. 483. Cincinnati, Wilmington & Zanesville R. R. Co. vs. Commissioners, 1 Ohio State R. 84. Geebrick vs. State, 5 Iowa, 491.) See also authorities cited in note to case of Rice vs Foster, Brightley's Election Cases 24.

§ 153. While the correctness of the general rule above stated is not questioned by any of the authorities, there is a conflict among them as to its application to a species of legislation now becoming very common in this country. In several of the States acts have been passed to confer upon the voters of cities or municipalities the power to decide, by ballot, whether the sale of intoxicating liquors shall be licensed or not. In several of the cases above cited, acts of this character are held to be unconstitutional and void. Such is the ruling in Delaware, Pennsylvania and Iowa. In the latter State, however, the decision is put, partly, upon the ground that all laws are required, by the Constitution to “have a uniform operation," and, inasmuch as some towns or cities might adopt license, and others vote it down, the op

eration of the law was held not to be uniform. (c) But on the other hand, there are decisions holding laws of this character to be valid. Of this class is Hammond vs. Haines, 25 Maryland, 541. State vs. Noyes 10 Fost, (N. H.) 279. State vs. O'Neall, 24 Wis., 149.

§ 154. These cases proceed upon the theory that the legislation referred to, does not vest the law-making power in the people at large, but only confers upon cities or municipalities such powers as may properly be conferred by legislative act. It is enough to say here, that in every case the real question is, does the act in question attempt to confer upon the people at large, the power to make laws, or the power to say whether or not an act of the legislature shall have the force of law? If it does plainly attempt to do this, it is null and void. Upon this general subject the reader is referred to the following authorities, in addition to those already cited: State vs Morris, Common Pleas, Am. Law Reg., Vol. 12, page 32, (new series.) State vs. Parker, 26 Vt., 356. And see, also, an able discussion of the subject in American Law Register, Vol. 11, page 129, (new series.)

§ 155. We have seen in another connection that a certificate of election which shows that it is based upon a partial canvass, is fatally defective because a full canvass might show a different result. A similar rule is sometimes applied to the return from a county which embraces a number of precincts or voting places. Thus in Niblack vs. Walls, 42d Congress, a county return was rejected, because the county canvassers rejected the vote of three precincts, and counted that of two only. Each party was required to prove his vote by evidence other than the return.

[c.] The act of the legislature of Iowa held to be unconstitutional, was peculiar. It was not only a "local option" law, but it declared that a previous act prohibiting the sale of intoxicating liquors, should not be "repealed in any county of the State, unless the people of such county shall by vote" adopt license. So that the act not only authorized the people of a county to grant license by a popular vote, but also undertook to authorize them to repeal, as to such county, a previous act which the legislature did not in terms repeal.

« SebelumnyaLanjutkan »