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silent being supposed to assent that the ques-, of two thousand or over shall decide by a tion shall be determined by those who vote. majority vote that they desire the jurisdicBell y. City of Ocala, 56 South. 683, 684, 62 tion of that court increased," the words “maFla. 431.

jority vote" mean a majority of all votes cast Const. art. 10, $ 9, does not provide the on the question of increased jurisdiction, and procedure for levying a tax for school dis- not a majority of all the votes cast at the trict purposes in excess of five mills on the election. State v. Fabrick, 121 N. W. 65, 66, dollar, and not exceeding ten additional 18 N. D. 402. mills, but leaves the same to be provided for As used in Const. $ 168, providing that by the Legislature, provided that a tax in changes in the boundaries of organized counexcess of five mills shall not be levied except ties shall be submitted to the electors of the on condition that a majority of the voters county or counties to be affected, and be of the district voting at an election of the adopted by a "majority of all the legal votes district vote for same. Const. art. 10, & 9, cast" at such election, the phrase "votes does not require that a levy in excess of five cast” means the total of the separate votes, mills on the dollar in any year for school or expressions of voters' preference for or district purposes, not exceeding fifteen mills, against such a change, and should be limited sball receive a majority of the votes of the to mean the votes cast on that proposition. Foters in the district, but only a majority To effect such change requires merely a maof said voters voting at the election. Tilley jority of the votes cast upon the question of a 1. Overton, 116 Pac. 945, 948, 29 Okl. 292.

change, and not a majority of the highest Const. § 41, providing that no county number of votes cast for any candidate, or seat shall be removed except by a “majority" | upon any proposition voted upon at the elecvote of the qualified electors of the county, tion, since to hold otherwise would be to does not mean a majority of all the qualified give as much effect to the act of an elector electors, but merely a majority of the votes who did not vote on such change as that of cast. Ex parte Owens, 42 South. 676, 148 one who voted in the negative. State v. Ala. 402, 8 L. R. A. (N. S.) 888, 121 Am. St. Blaisdell, 119 N. W. 360, 361, 18 N. D. 31. Rep. 67.

Pub. Laws 1903, p. 327, $ 73, provides for Const. art. 13, § 5, provides that no coun- submission to the voters of a city, at the next ty shall incur any indebtedness or liability principal election after a resolution of the for a single purpose to an amount exceeding city council for issue of bonds, of the ques$10,000 without the approval of a majority of tion of approval of the resolution, and states the electors, voting at an election to be pro- that the election officers shall report the numvided by law. Rev. Codes, § 2933, declares ber of votes in favor of issuing the bonds that county boards shall not borrow money and the number against such issue, and that, for any single purpose to an amount exceed- if it shall be found that the resolution has ing $10,000 without the approval of a major- been approved by "a majority of the voters ity of the electors of the county and without voting at such election,” the bonds may be first having submitted the question of a loan issued. Gen. Election Law (P. L. 1898, p. to a vote of such electors; and section 2937 | 319), $ 185, provides that, when the approval declares that, if a majority of the votes cast of a "majority of the legal voters" is reare in favor of the loan, then the board may quired by a statute before a proceeding unmake the loan and issue the bonds. Held, der it shall be lawful, the meaning of the that the enactment of section 2933 was not words "legal voters" in the statute shall be intended to add any requirement to that pre- “persons entitled to vote and who do vote scribed by the Constitution, and that the * on the question or proposition subwords "majority of the electors of the coun-mitted,” and that the persons who do not ty," as used therein, should be construed to vote at such election shall not be considered mean "a majority of the votes cast.” Morse on the question of what is a majority of the T. Granite County, 119 Pac. 286, 291, 44 legal voters with respect to the proposition Mont. 78.

submitted. Held, that “a majority of the

voters voting at such election" required for As majority voting on particular issue approval of a resolution for bond issue means

Where the language of an act is “a ma- only a majority of the persons voting on such jority of the votes cast,” or “a majority of proposition, and not a majority of the perall votes cast," it means a majority of the sons voting at such election on that and other votes cast on the question submitted; and questions. Murphy v. City of Long Branch that, whether the votes are cast at a general (N. J.) 61 Atl. 593, 594. or special election. Territory ex rel. Me. Guire v. Board of Trustees for High School

By “majority” is meant a majority of the of Logan County, 76 Pac. 165, 167, 13 Okl. whole number of electors voting at the elec605.

tion, and not a majority of the votes recorded As used in Const. § 111, providing that test, 136 N. W. 1031, 1032, 118 Minn. 371.

for or against license. In re Election Concounty courts shall have jurisdiction of certain civil and criminal causes "whenever Where a question is required to be subthe voters of any county having a population 'mitted at a certain regular election, and is

made to depend on a “majority of the votes MAKE
cast at such election," a majority of all the
votes cast at the election is meant, and not See, also, Made.
merely a majority of the votes cast on that As maintain
particular question. Santa Rosa v. Bower,

A covenant in a conveyance of land for 75 Pac. 829, 830, 142 Cal. 299.

a right of way that the railroad would “make The words "such election,” as used in and maintain" a wire fence on both sides of the section of the Constitution which pro- the land conveyed, “and also make" a farm vides how constitutional amendments shall be crossing, in pursuance of which the railroad passed through the General Assembly for sub- did supply, maintain, and keep in repair a mission to the people, and for publication crossing for a number of years, obligated the for at least six months "immediately preced- railroad not only to make, but also to maining the next general election for Senators tain, the crossing. Pittsburg, C., C. & St. L. and Representatives, at which time the same Ry. Co. v. Wilson, 72 N. E. 666, 668, 34 shall be submitted to the electors of the state Ind. App. 324. for approval or rejection, and, if a majority

Compel synonymous of the electors voting in such election adopt such amendments, the same shall become a fendant's brother said he would “make” de

Where defendant's mother stated that depart of the Constitution," evidently refer to the general election for Senators and Rep-ant was guilty of murder if he armed him

cedent apologize, an instruction that defendresentatives, and the “majority” necessary self with the intention of "compelling” deceto adopt an amendment must be the major- dent to apologize, and on his failing to do ity of electors voting at the general election

so killed him, was not erroneous; "comfor Senators and Representatives, and not a mere majority voting on the subject of the "make." Pipkins v. State, 97 s. W. 61, 63,

pelled" being substantially synonymous with amendment. Rice v. Palmer, 96 S. W. 396,

80 Ark. 617. 400, 78 Ark. 432 (citing Knight v. Shelton, 134 Fed. 423; State ex rel. McClurg v. Pow

A book ell, 77 Miss. 545, 27 South. 927, 48 L. R. A. See Bookmaking. 652).

Effort Laws 1905, p. 659, c. 397, § 10, providing Where defendant accepted plaintiffs' offor submission of the proposition of establish- fer to make ice cans at a certain price, on ing county high schools, and that, when "a condition that they were made and shipped majority of the voters voting” in any coun- within 30 days, and plaintiffs accepted the ty shall be in favor of such proposition, the order and promised to “make every effort" provisions of that act shall apply thereto, to have the cans delivered at the time indirequires, where the election is a general one, cated, the assurance must be construed as a majority of all the voters voting on any the expression of purpose to comply with office or proposition at such election. Board the strongly emphasized requirement for of Education of City of Humbolt v. Klein, shipment in 30 days, and not as a modifica99 Pac. 222, 223, 79 Kan. 209.

tion thereof. Wall v. St. Joseph Artesian As determined by casting vote of pre- Ice & Cold Storage Co., 87 S. W. 574, 575, siding officer

112 Mo. App. 659. Stamford City Charter (13 Sp. Laws, p. False entry 1152), § 8, creates a board of appropriation Concealment by the president of a naand apportionment for the condemnation of tional bank from the bookkeeper of facts necland required by the city, consisting of eight essary to enable the latter to make accurate members; the mayor being a member ex entries in the books of the bank, by reason officio and president of the board, with pow- of which fact he made false entries, does not er to vote only in case of a tie. 14 Sp. Laws constitute the making of false entries by the 1905, p. 858, $ 6, provides that the taking of president which is made a criminal offense land for park purposes shall be by a “ma- by Rev. St. $ 5209. United States v. McClarjority" vote of all the members of the board, ty, 191 Fed. 523. both present and absent. Held, that, in

False writing case of a tie, when all the members of the board were present and voted, the mayor's

There is a distinction between falsely vote was sufficient to make a majority. Bo- making a certificate of acknowledgment and

The former hannan v. City of Stamford 67 Atı. 372, 373, "making a false certificate." 80 Conn. 107.

term contemplates a certificate which is not

genuine, while the latter imports a genuine MAJORITY OF STOCKHOLDERS

certificate, the contents or allegations of An election to be held by a "majority which are false. Territory v. Gutierrez, 84 of stockholders” means a majority in inter- Pac. 525, 526, 13 N. M. 312, 5 L. R. A. (N. S.) est. In re P. B. Mathiason Mfg. Co., 99 s. 375. W. 502, 504, 122 Mo. App. 437 (quoting and "Make" has many significations and conadopting definition in 2 Cook Corp. (5th Ed.] veys many meanings, among which is “to put $ 609).

forth; give out; deliver;" also “to inform:

apprise.” Cent. Dict. Thus when a person, y notice of quarantine and the giving of notice seeking credit, bands to a merchant a mate to the proper officers of carriers doing business rially false written statement concerning his in any quarantined state, the words "make" financial condition, no matter who composed and “promulgate” are not synonymous, and and signed it, if it be one calculated to de- the duty to "make" rules was sufficiently ceive, and then reads it to such merchant, accomplished by writing them and signing and thereby obtains property from him on them officially, but to "promulgate" them recredit, he has obtained property on credit up-quired the giving notice thereof to the offion a materially false statement in writing cers of carriers, etc., and their publication in "made to" such person. In re Aldrigde, 168 the selected newspapers within the affected Fed. 93, 98, 99.

district. United States v. Louisville & N. Promulgate distinguished

R. Co., 165 Fed. 936, 939. The word "make," as used in Act Cong.

Sale March 3, 1905, c. 1496, § 3, which requires the The words "to sell” or “to make a sale," Secretary of Agriculture to "make" and "pro- as used in a communication from the owner mulgate" rules and regulations governing the of real estate to a broker with respect to method and manner of shipment, inspection, the sale thereof, are often used as meaning and delivery of cattle from quarantined ter- to negotiate or arrange for a sale. Brown ritory, is not synonymous with “promulgate," v. Gilpin, 90 Pac. 267, 271, 75 Kan. 773. and means only the writing and official sign

Signature ing of such rules; the "promulgation" of

Under a statute making a writing, not them requiring notice to the officers of transportation companies, etc., and their publica- signed in the presence of witnesses, invalid tion in the selected newspapers within the as a will, unless testatrix acknowledged the affected district. United States v. Louisville

"making thereof," the phrase quoted refers & N. R. Co., 165 Fed. 936, 939.

to the making of the signature in the pres

ence of the witnesses. Manners v. Manners, Quarrel

66 Atl. 583, 584, 72 N. J. Eq. 854. In a trial for murder, the court instructed that it is the duty of one engaged in a

MAKER quarrel to avoid an attack, and not to be- of note come the aggressor, unless other means are See Accommodation Maker; Comaker; unavailable, and that if defendant, after be

Joint Maker; Principal Maker. ing engaged in a quarrel with deceased, de- Indorser distinguished, see Indorser. scended to the street, knowing that deceased was in the street, with intent to continue

"One not before a party to a note, who the quarrel, and in order to make "his quar- signs his name on the back of it in blank, is rel effective," took with him a dangerous prima facie a 'maker,' and assumes the same weapon, and sought out deceased, and stab- obligation as if he wrote his name upon the bed him, his action was not justifiable hom

face of the instrument." Lyndon Savings icide, though deceased drew a revolver, was

Bank v. International Co., 62 Atl. 50, 52, 78 not erroneous, whether the phrase "making

Vt. 169, 112 Am. St. Rep. 900 (quoting and the quarrel effective” meant that defendant adopting definition in Lyndon Savings Bank took the weapon with intent to take the life v. International Co., 54 Atl. 191, 75 Vt. 224). of deceased, or meant, if defendant renewed Where a note reciting, "I promise to the quarrel, whether with or without in-pay,” was signed on the face by two persons, tent to take life, the killing was not justifi- they were both “makers." Ullery v. Brohm, able. People v. Filippelli, 66 N. E. 402, 405, 79 Pac. 180, 20 Colo. App. 389. 173 N. Y. 309.

The transferror of a nonnegotiable writRecord

ten contract does not, by signing his name Where a clerk of a Circuit Court makes on the back of it, make himself liable as and certifies a record in response to a writ of "maker,” “guarantor,” or “indorser," within error or appeal, he is not merely making a

Rem. & Bal. Code, $ 6250, providing that transcript or copy, but is “making a record." the discounting of commercial paper, where within Rev. St. & 828, providing that a clerk the borrower makes himself liable as maker, of the Circuit Court shall be entitled for guarantor, or indorser, shall be considered as making a record to 15 cents a folio. Hoys

a loan for the purpose of the chapter relating radt v. Delaware, L. & W. R. R., 182 Fed. to usury. Thomson v. Koch, 113 Pac. 1110, 880, 882.

1111, 62 Wash. 438. Rule

MAKING In Act Cong. March 3, 1905, c. 1496, § 3, "Making" is defined as the action of one requiring the Secretary of Agriculture to who makes. Town of Checotah v. Town of "make" and "promulgate" rules governing the Eufaula, 119 Pac. 1014, 1017, 31 Okl. 85. inspection, delivery, and shipment of cattle from a quarantined state into any other MAKING SALES state, and section 1 requiring publication of See Salesmen Making Sales.

MAL

MALE See Petit Mal.

MALE HEIRS MALA FIDE PURCHASER

See Heirs Male. “A person who purchases an estate, although for a valuable consideration, with no- MALFEASANCE tice of a prior equitable right, makes himself a ‘mala fide purchaser,' and will himself

“'Malfeasance is the unjust performance even be held a trustee for the benefit of the of some act which the party had no right, or person whose right he sought to defeat." which he had contracted not to do." Dudley Mansfield v. Wardlow (Tex.) 91 S. W. 859, v. Flemingsburg, 72 S. W. 327, 115 Ky. 5, 60 863 (citing Pom. Eq. Jur. $ 659).

L. R. A. 575, 103 Am. St. Rep. 253, 1 Ann.

Cas. 958. MALA IN SE

"Malfeasance" is the doing of an act See Contracts Mala In Se.

which a person ought not to do at all. A distinction is made between acts which inattention, or malice does that which he

Where an officer either through ignorance, are “mala in se,” which are generally re- has no legal right to do at all, or acts withgarded as absolutely void, in the sense that out any authority whatever, or exceeds, ig. no right or claim can be derived from them, nores, or abuses his powers, he is guilty of and acts which are mala prohibita, which malfeasance." State, to Use of Cardin, v. are void or voidable, according to the na- McClellan, 85 S. W. 267, 268, 113 Tenn. 616, ture or effect of the act prohibited. Pet- 3 Ann. Cas. 992. terson v. Berry, 125 Feu. 902, 906, 60 C. C. A. 610 (citing Ewell v. Daggs, 2 Sup. Ct. 408,

The taking of the property of one, by a 108 U. S. 143, 27 L. Ed. 682); In re T. H. coroner, on a writ against another, is a “malBunch Co., 180 Fed. 519, 527.

feasance in office," constituting a breach of

his bond given for “the faithful performance MALA PROHIBITA

of the duties of his office.” Harris v. Hanson,

11 Me. 241, 245. See Mala in Se.

Permission by a sheriff to a prisoner to MALADMINISTRATION

escape is “malfeasance,” within Kirby's Dig. As applied to public officers, “maladmin- & 7993, providing for removal of county ofistration” is not in ordinary use distinguish- ficers on conviction of an offense amounting ed from misadministration. Territory

to malfeasance. Houpt v. State, 140 S. W. Sanches, 94 Pac. 954, 956, 14 N. M. 493, 20 294, 297, 100 Ark. 409, Ann. Cas. 1913C, 690. Ann. Cas. 109.

While to convict an officer of the felony

denounced by Comp. Laws 1907, $ 4083, punMALCONDUCT

ishing every person who with intent to de The reception of illegal votes at an elec- fraud, presents for allowance and payment a tion for a public office is not “malconduct" fraudulent claim, the proof must show that on the part of the election officers, within he presented the claim with intent to deCode Civ. Proc. & 2010, authorizing an elector fraud, yet such proof is not essential to susto contest an election for malconduct on the tain a conviction for malfeasance in a propart of the judges of election, but constitutes ceeding for his removal under section 4565 ; a separate ground for contest under the ex- the term “malfeasance" meaning the compress provisions of the section. Coleman v. mission of an act which is positively unlawKerr, 83 Pac. 393, 394, 33 Mont. 198.

ful. Law v. Smith, 98 Pac. 300, 307, 34 Utah,

394. An officer who violates his public obligation, and betrays his trust by ing his offi

"While 'malfeasance in office is defined cial influence or vote, is guilty of "malcon- generally to be the wrongful or unjust doing duct in office.” Etzler v. Brown, 50 South. of some official act, which the doer has no 416, 417, 58 Fla. 221, 138 Am. St. Rep. 113. right to perform, or which he has stipulated

by contract not to do, it is essential that an

evil intent or motive must accompany the MALARIA

act, or that it must have been done with such

gross negligence as to be equivalent to fraud.” "Malaria" is "a morbid condition produc- An indictment of a county clerk for unlawed by exhalations from decaying vegetable fully issuing a license to sell liquor in a matter in contact with moisture, giving rise local option precinct, which fails to aver that to fever and ague and many other symptoms his action was from a corrupt motive or characterized by their tendency to recur at fraudulent, or that he knew at the time that definite and usually uniform intervals.” City it was unlawful for him to issue the license, of St. Louis v. Galt, 77 S. W. 876, 879, 179 is insufficient. Commonwealth v. Wood, 76 Mo. 8, 63 L. R. A. 778 (quoting Webster S. W. 842, 843, 116 Ky. 748 (citing Bishop's Dict.).

New Cr, Law, 88 972, 834).

V.

see

“Malfeasance" is the doing of an act acts which he should have done, whereby a which is positively unlawful or wrongful third person is injured, it is not a nonfeawhich one ought not to do at all. It is an sance, but a misfeasance. Misfeasance may act wholly wrongful and unlawful. It is involve the omission to do something which said that misconception of one's rights af- ought to be done, as where an agent engaged fords no ground for a conclusion of malfea- in the performance of his undertaking, omits sance. It is not malfeasance in office, for to do something which it is his duty to do which, under Highway Law, N. Y. (Consol. under the circumstances, as when he does Laws 1909, c. 25) $ 30, a county superintend- not exercise that degree of care which due ent of highways may be removed by the regard for the rights of others requires." county supervisors, that he presents to a Orcutt v. Century Bldg. Co., 99 S. W. 1062, town, and bas paid, a personal bill for pre 1068, 201 Mo. 424, 8 L. R. A. (N. S.) 929 paring, under employment by it, plans and (quoting and adopting definition in Clark & specifications for an avenue therein, the work Skyles, Law of Agency, $ 596). on which was done by his private employés in his business of civil engineer, as not

MALICE only under sections 33, 48, relative to his duties, is the county superintendent under no See Constructive Malice; Express Malabsolute duty to do such work, but, even if ice; Implied Malice; Premeditated he cannot legally present a claim against the Malice; Universal Malice; With Mal. town, such action would be wrongful to the ice Aforethought; Without Previous town only, whereas the malfeasance justify

Malice. ing his removal must be such as affects his Absence of, see Voluntary Manslaughter. performance as county superintendent, and Implied from willful or willfully, he having at most misconceived his rights, Willful— Willfully. in supposing there was no legal objection to

As known to the law, “malice" is a his rendition of the account, which affords no ground for a conclusion of malfeasance. wrongful act done intentionally, without just

cause or excuse. Leavell v. Leavell, 99 S. W. People ex rel. Seaman v. Cocks, 134 N. Y. Supp. 808, 810, 149 App. Div. 883 (citing Cent. 460, 461, 122 Mo. App. 654; Hathaway v. Dict.; Bell v. Josselyn, 3 Gray [69 Mass.] nell v. State, 81 s. w. 746, 747, 46 Tex. Cr.

Commonwealth (Ky.) 82 S. W. 400, 402; Con309, 63 Am. Dec. 741; Coite v. Lynes, 33 R. 259; London Guarantee & Accident Co. v. Conn. 109; Stokes v. Stokes, 48 N. Y. Supp. Horn, 69 N. E. 526, 530, 206 IIl. 493, 99 Am. 722, 23 App. Div. 558).

St. Rep. 185; Schonwald v. Ragains, 122 Nonfeasance distinguished

Pac. 203, 211, 32 Okl. 223, 39 L. R. A. (N. S.) "There is a distinction between non- 854; McFadden v. Lane, 60 Atl. 365, 367, 71 feasance and misfeasance or malfeasance; N. J. Law, 624. and this distinction is often of great impor

"Malice" is not necessarily personal hate tance in determining an agent's liability to or ill will, but is a state of mind which is third persons. In this connection, 'nonfea- reckless of law and the legal rights of citisance' means the total omission or failure of

Bowles v. Lowery, 59 South. 696, 697, an agent to enter upon the performance of 5 Ala. App. 555. some distinct duty or undertaking, which he

"Malice" in law does not, as is generally has agreed with his principal to do. “Misfea. sance' means the improper doing of an act understood, mean spite or ill will, but means which the agent might lawfully do, or, in the intentional doing of a wrongful act. Wilother words, it is the performing of his duty liams v. Williams, 111 s. W. 837, 838, 132

Mo. App. 266. to his principal in such a manner as to infringe upon the rights and privileges of third An instruction defining “malice" as the persons; and 'malfeasance' is the doing of doing of a wrongful act intentionally is coran act which he ought not to do at all. It is rect. Butcher v. Hoffman, 73 S. W. 266, 268, not every omission or failure to perform a 99 Mo. App. 239. duty that will constitute a nonfeasance, but

“ “Malice' has always been divided into only an omission to perform such distinct two kinds: Implied malice, or malice in law, duties as he owes to his principal, as distinand express malice, or malice in fact.” Lauguished from those which he owes to third der v. Jones, 101 N. W. 907, 915, 13 N. D. Persons, or the public in general as a member 525 (quoting and adopting Gambrill v. School. of society. Nonfeasance does not extend to ey, 52 Atl. 500, 508, 95 Md. 260, 63 L. R. A. the omission or failure to do some act, where

427), by a third person is injured after he has

"Malice" is not necessarily personal hate, once entered upon the performance of his contractual obligations. For example, if an

but is rather an intent and disposition to do agent undertakes to perform certain acts for a wrongful act greatly injurious to another. another, and he refuses or fails to enter upon s. w. 835, 837, 90 Ark. 462, 21 Ann. Cas. 726.

Chicago, R. I. & P. Ry. Co. v. Whitten, 119 such performance, it is nonfeasance; but if he once begins the performance of such acts, “Malice" comprehends ill will, a wickedand in doing so fails or omits to do certain ness of disposition, cruelty, recklessness, a

zens.

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