case of Symmes v. Frazier the court said: "Any other construction would be extremely mischievous in its effects, and would in most cases tend to convert an honest finder of lost or stolen property into a fraudulent concealer of it. It is, therefore, for the interest of the loser, and certainly tends to secure the integrity of the finder, that whenever any proportion of the property is found and actually restored, under circumstances which leave no doubt of the faithfulness and integrity of the finder, this latter should have such part of the reward which may have been offered as will be proportionate to the property so restored." It has been held, how. ever, that an offer of reward, made for the capture of two persons, does not entitle the captor of one to recover pro tanto. In deciding this case the court said: "This is an entire proposition which when acted upon by any person would constitute a contract single in its nature, and not subject to apportionment." When a reward was offered for the apprehension of a certain forger and the recovery of the moneys, both the apprehension of the forger and the recovery of the moneys were held to be conditions precedent to the payment of the reward; and a reward offered for the arrest and conviction of an offender is not apportionable, and to enable one to recover he must show that he is entitled to it as well for the detection as for the conviction of the offender. 82

80

83

Agency.-One may perform the service or do the act for which the reward is offered, as an agent or servant of a third party,8 and in such case the third party is entitled to recover the reward. The principle is well illustrated in the case of Pruitt v. Miller, where M arrested a fugutive and while on the way to deliver him to the sheriff he escaped, and afterward at the request of and upon information furnished by M, P promised to and did recapture him and unbeknown to M delivered him to the sheriff. It was held that M was entitled to the reward, v. Wilson, 5 La: 397; Symmes v. Frazier, 6 Mass. 344.

80 Blain 'v. Pacific Express Co., 69 Tex. 74.

31 Jones v. The Phoenix Bank, 8 N. Y. 228. See Furman v. Parke, 21 N. J. L. 310.

82 Van Horn v. Ricks Water Co, 115 Cal. 448; Pool v. City of Boston, 59 Mass. 219.

83 Montgomery Co. v. Robinson, 85 Ill. 174; Pruitt Miller, 3 Ind. 16; Grady v. Crook, 2 Abb. N. Cas.¡ 53 53.

Supreme Court of South Dakota, November 20, 1901. 1. Const. art. 6, § 19, provides that elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. Article 7, § 1, provides what shall constitute the qualifications of an elector, and declares that one possessing these qualifications shall be deemed a qualified elector at such election. The constitution makes no further provision as to the exercise of the right of suffrage. Held, that the legislature was not inhibited by the constitution from passing an election law requiring the names of all candidates to be certified by law, and printed on an official ballot, thus, in effect, denying to electors the right of writing on the official ballot the name of a candidate whose name has not been properly certified.

CORSON, J.: This is an appeal from an order sustaining a demurrer to plaintiff's complaint. The appeal has been dismissed as to the defendants George D. Wood and F. C. Hedger, leaving the defendant E. H. Alley the only respondent. The action was brought by the plaintiff to recover of the defendants damages for unlawfully depriving him of the office of county commissioner of Brown county.

It appears from the complaint that no certificate of nomination of the plaintiff for office of county commissioner was filed in the office of the auditor within the time prescribed by law, and that the method of voting for said plaintiff as county commissioner was by writing his name upon the official ballots used at said election, and by making a cross at the left of his name upon the said ballots. While the trial court has not stated the grounds upon which the demurrer was sustained, it seems to be assumed by the appellant, and we may presume that it was made upon the ground that as no certificate of the nomination of the appellant was filed in the office of the

county auditor 20 days before the election, and, as his name was not printed on the official ballot, he was not legally a candidate, and that the votes cast for him by writing the description of the office, his name thereunder, and a cross at the left thereof, was not a compliance with the statute, and he was not, therefore, legally elected to the office.

An important question is therefore presented for the determination of this court, namely, can a person be voted for and elected to an office under the laws of this state, who has not filed a certificate of his nomination in the proper office within the time prescribed by law, and whose name is not printed as a candidate upon the official ballots? Under what is known as the "Australian Ballot Law," enacted by the legislature of this state, and in force at the time of the election set out in the complaint, it is provided that an official ballot shall be printed at the expense of the county, upon which the names of all candidates for office, who have properly filed certificates of nomination, shall be printed, and the elector is authorized to indicate his choice for such candidate as he may desire to vote for by making a cross at the head of the party ticket or at the left of the name of the candidate for whom he desires to vote. No provision is made in the law, as it stood in 1895, for writing the name of any person upon the ballot. This court has held in a number of cases, beginning with Vallier v. Brakke, 7 S. Dak. 343, 64 N. W. Rep. 180, that the writing of a name upon the official ballot invalidated the same. In Parmley v. Healey, 7 S. Dak. 401, 64 N. W. Rep. 186, this court, speaking by Mr. Justice Fuller, says, "And, moreover, the writing of a name upon a ticket identifies the voter, and invalidates the entire ballot, and subjects the one who places it there to a criminal prosecution."

The appellant contends, however, that under the constitution of this state an elector has the right at any election to vote for any person for an office he may desire, and that the act of the legislature, if it is to be so construed as to deprive the elector of the right to write the name of the candidate for whom he desires to vote upon the official ballot, is unconstitutional. The right of suffrage is not a natural or civil right, but a privilege conferred upon the person by the constitution and laws of the state. Judge Cooley, in his work on Constitutional Limitations, says: "Participation in the elective francise is a privilege, rather than a right, and it is granted or denied upon grounds of general policy." Cooley, Const. Lim. (6th Ed.) 752. In People v. Barber, 48 Hun. 198, the Supreme Court of New York says: "The elective suffrage is not a natural right of the citizen. It is a franchise dependent upon the law by which it must be conferred to permit its exercise. It is a political right, to be given or withheld at the pleasure of the lawmaking power of the sovereignty." 10 Am. & Eng. Enc. Law (2d Ed.), 568. The question,

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therefore, as to what right an elector has in this state, must be determined by an examination of its constitution and laws. It is scarcely necessary to repeat what has been frequently said by this court, that, presumptively, the law enacted by the legislature is valid, and it must be so held unless it is clearly in conflict with or repugnant to some express provision of the constitution, or the legislation has been expressly inhibited by the constitution from enacting the same.

With these preliminary observations, we will examine the provisions of the constitution of this state that bear upon the question of the right of suffrage. Section 19, art. 6, of the constitution, provides, "Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." Under these provisions the elector cannot legally be physically restrained, in the exercise of his right by either civil or military authority; nor can there be inequality, and every voter shall have the same right as every other voter. Certainly, under the laws we are considering, all electors are vested with the same rights, namely, the rights of appearing at an election and voting in the manner prescribed by law. Section 1, art. 7, provides what shall constitute the qualifications of an elector, and one possessing these qualifications it is declared "shall be deemed a qualified elector at such election." It will be noticed that in neither of these sections is it provided when, how, where, or under what conditions the elector shall exercise the right of suffrage. The framers of the constitution seem to have designedly left the right of suffrage at this point to be regulated and governed by such laws as the legislature might deem proper to enact. The constitutional convention and the legislature are equally the representatives of the people, and the written constitution marks only the degree of restraint which, to promote stable government, the people impose upon themselves; but whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. The legislature, just as completely as a constitutional convention, represents the will of the people in all matters left open by the constitution. Com. v. Reeder, 171 Pa. 505, 33 Atl. Rep. 67, 33 L. R. A. 141. Unless, therefore, the legislature is inhibited from enacting the law we are considering, it is as much the will of the people as though expressed in the constitution. Let us ask, therefore, what provision is there in the constitution inhibiting the lawmaking power from providing when, how, and under what regulations and conditions the elector may exercise the right of suffrage? The constitution has not, as we have seen, prescribed any conditions or rules governing the exercise of the right; nor has it inhibited the legislature from prescribing such rules, regulations, and conditions as it might deem proper and for the public interests. The lawmaking power has

taken the elector at the point where the constitution has left him, and has provided when, in what manner, and under what restrictions he may exercise the right of suffrage, and in so doing has provided: First, that he must exercise that right by using an official ballot; second, that he must designate in the manner specified his choice of candidates whose names are upon the official ballot, and whose names can only be placed there by a compliance with the law; third, it has, in effeet, denied to the elector the right to write the name of a candidate for whom he desires to vote upon the official ballot, or otherwise deface the same, by declaring that "no elector shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him." The law, in form, applies equally to all electors without discrimination, and one elector therefore possesses all of the rights, and no more, of every other elector. The legislature, therefore, having in effect limited the right of the elector to voting for candidates whose names are printed on the official ballots, he can only exercise the right in the manner prescribed. But the elector is not thereby necessarily deprived of the right of suffrage, as he has the same right as any other elector to secure the printing of the name of his candidate upon the official ballot in the manner prescribed by law, namely, by nomination of some political party, or by securing the signatures of 20 electors, in the case of county office, to a certificate. This may occasion the elector some inconvenience and labor, but these constitute no objection to the law. In fact, the law requires many acts to be done by the elector not required under former laws, but these requirements have been generally held to be constitutional. We see no reason why the law as laid down by the courts in regard to those requirements should not be applicable to this

case.

The Supreme Court of Pennsylvania, in Com. v. Reeder, supra, has recently decided an important constitutional question very much in point in the case at bar. A law was enacted by the legislature of that state for the election of seven judges of the superior court, which provided that no electors should be permitted to vote for any number exceeding six of the judges to be so elected. It was contended by certain electors that this act was unconstitutional in that it deprived the electors of the right given them by the constitution to vote for the entire seven judges. But the court held against this contention, and that the law was constitutional. The court in a very able opinion discussed the constitutional question at length, and in the course of the opinion, in speaking of the will of the people as expressed in the act of the legislature, says: "We peruse the expression of their will in the statute, then examine the constitution, and ascertain if this instrument says 'Thou shalt not,' and, if we find no inhibition, then the statute is the law simply because it is the will of the peo

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ple, and not because it is wise or unwise." In speaking of one possessed of all the qualifications of an elector, the court says: "Then he is an elector, and entitled to vote as the law may prescribe. Being an elector, and therefore entitled to vote at all elections, the constitution of 1874, as well as those which preceded, goes a step further, and in section 5, art. 1, declares, 'All elections shall be free and equal;' that is, the voter shall not be physically restrained in the exercise of his right by either civil or military authority. Nor shall there be inequality. Every voter shall have the same right as every other voter." And the court, further on in the opinion, says: "Can they [constitutional provisions], by any reasonable interpretation, include an absolute right to vote for every candidate of the group of candidates for the same office? The question now is as to the interpretation to be put upon the language specifying the qualifications of the voter who has by law a right to vote at the election for the candidates for this office. No sound reason has been urged in the argument why we should enlarge the scope of the words 'shall be entitled to vote at all elections' by practically adding, 'also for every candidate of a group of candidates for the same office.' The constitution does not say and has never been interpreted to so mean." It will be seen that the court in this case goes much further than we are required to go in the case at the bar. There the elector was limited by the law to voting for six candidates out of the seven, and it was conceded that, if limited to six, he might be limited to a less number; and the court sustained the act of the legislature for the reason that it was not inhibited by the constitution from enacting the same. In the case at bar, as we have seen, no elector is deprived of his right to vote for the candidate of his choice, but, in order to exercise the right, he must see that the name of his candidate is upon the official ballot. We do not feel called upon to give the constitution of this state a forced or strained construction in order to defeat a law so beneficial to the people of this state, and so well calculated to prevent fraud, bribery, and corruption at our elections. To construe the constitution as giving the right to the elector to write upon the official ballot the name of any candidate, and to deny to the legislature the right to prescribe upon what conditions the elector may exercise the right of suffrage, would, in effect, destroy the more important features of our election law in securing the purity of elections and preventing the fraud, bribery, and corruption at elections existing under the former system; for, if the elector may write the name of a candidate upon the official ballot, this necessarily would constitute a "distinguishing mark," and eliminate from our system the secrecy intended, and thereby enable bribery at elections to be carried on with safety. A candidate desiring to purchase a number of votes could easily arrange with the voters, as

proof that they had complied with the contract on their part, to write on the official ballot the name of John Jones, or any other person agreed upon for the purpose, for some minor office. An examination of the ballots would at once show whether or not the voters had carried out their contract. Again, one of the most important features of the election law is the one requiring the names of all candidates to be certified as required by law, and printed upon the official ballot, thus enabling the public to investigate the moral character and qualifications of the candidate for the office to which he aspires, and enable the voters to use such efforts as may be necessary to defeat a dishonest or incompetent candidate. Upon a careful consideration of the question, we are clearly of the opinion that the constitution has not inhibited the legislature from requiring the names of all candidates for office in this state to be printed upon the official ballot, and, in effect, denying to electors the right of writing upon the official ballot the name of any candidate.

The right claimed is, for all practical purposes, a mere theoretical or abstract right. This is apparent from the fact that, though the election law of this state has been in effect for more than 10 years, this is the first case, so far as the records of this court disclose, in which the right has been claimed; and in this case it appears from the record that the plaintiff had obtained the proper certificate, but through some inadvertence it was filed with the auditor one day too late, hence his name was omitted as a candidate from the official ballot. We have not overlooked the cases of Sanner v. Patton (Ill. Sup.), 40 N. E. Rep. 290; People v. Shaw (N. Y. App.), 31 N. E. Rep. 512, 16 L. R. A. 606; Bowers v. Smith (Mo. Sup.), 17 S. W. Rep. 761; State v. Dillon (Fla.), 14 South. Rep. 383, 22 L. R. A. 124-cited by counsel for appellant in support of his contention. But in neither of these cases, except the one cited from Florida, was the constitutional question we have been considering involved, and the only question before the court in each of those cases was whether or not the law under consideration authorized the writing of the name of the candidate upon the official ballot. The comments of the judges, therefore, upon the constitutionality of the law, were dicta, simply, and not binding upon the court in which the decisions were rendered, and are entitled to very little weight in this court. In the Florida case the Supreme Court of Florida seems to have held that part of the law we are considering unconstitutional, but the decision of that question does not appear to have been required in that case. The order of the circuit court, appealed from, is affirmed.

NOTE.-Constitutionality of Act Restricting the Right to Vote to Candidates on Official Ballot.-The Australian Ballot System has given occasion for much litigation. Many attempts have been made to at tack it on the ground of unconstitutionality, but gen.

erally without success. This system originated in Australia in 1857, and its essential features were a printed ballot to be furnished by the state and pri vate polling booths and other provisions for secrecy as to voting. The object was to prevent bribery and coercion by preventing the bribe giver and political bully from ascertaining whether their foul practices have resulted successfully or otherwise, and thus destroying all interest in committing the offense.

But the constitutional rights of the individual can. not be suffered to be curtailed or disregarded, even in an effort to attain the laudable object which this system has set before it. One of these hitherto un. questioned rights of the voter is to vote for whom he pleases. Of course, reasonable provisions requiring legal nominations to be made by political parties of a certain size, or a certain number of voters, or within a certain time do not infringe any of the constitutional guaranties of the voter. Chateau v. Jacob, 88 Mich. 170; State v. Dillon, 32 Fla 545; People v. Wappingers Falls, 144 N. Y. 616; Bowers v. Smith, 111 Mo. 45; Ransom v. Black, 54 N. J. L. 446; Miner v. Olin, 159 Mass. 487; Price v. Lush, 10 Mont. 61; De Walt v. Bartley, 146 Pa. St. 529, 28 Am. St. Rep. 814. In this last case, however, the court makes a statement which very considerably weakens the inference which the court in the principal case draws from the case of Commonwealth v. Reeder, 171 Pa. St. 505. The court says: "If an official ballot is to be used, nominations must be regulated in some way, otherwise the scheme would be impracticable, and the official ballot became the size of a blanket. While so regulating it, the act carefully preserves the right of every citizen to vote for any candidate whose name is not on the official ballot." It seems, indeed, strange that the court in the principal case should have found it necessary to deny this well-established rule safe-guarding the voter's independ ent choice as to candidates. On this point also, the clear statement of Justice Fuller,in his vigorous dis senting opinion inthe principal case, cannot be improved: "Until all men are viewed in exactly the same light, and the preference of one becomes the preference of all, it will be neither plausible nor reasonable to say that the right of suffrage can be freely, equally and independently exercised under a statute which merely gives to qualified electors an option to vote for persons whose names are printed on the official ballot or not vote at all; and such is not, and under our system of government, can never be the law. It is manifestly absurd to hold that the elector who is thus deprived of his privilege of choosing a public servant stands on equal footing with those who find upon the official ballot the name of every candidate for whom they choose to vote. It is the constitutional prerogative of every qualified elector, who has complied with all preliminary statu tory regulations as to registration, etc., to vote for whomsoever he may choose; and statutes which deprive him of such right have been, so far as my research extends, invariably held for naught in every jurisdiction with the exception of this." The "research" of Justice Fuller seems to, have been unusually thorough, as he cites to the paragraph just quoted practically all the authorities on this important rule of law. Maynard v. Board of Canvassers, 84 Mich. 228; Monroe v. Collins, 17 Ohio St. 665; Eaton v. Brown, 96 Cal. 371, 17 L. R. A. 697; State v. Dillon, 32 Fla. 545; Sanner v. Patton, 155 Ill. 553; Bowers v. Smith, 111 Mo. 45.

In Sanner v. Patton, 155 Ill. 553, 49 N. E. Rep. 290, it was contended in support of the judgment ap.

pealed from, that the name of a person for whom the voter desires to cast a ballot could not be written upon the official ballot. The court held that votes cast for a person not nominated for office in any of the ways provided by statute, but whose name, not being printed upon the official ballot, was written by each voter in a blank space upon the same and marked with a cross, are legal votes; and that the mere addition of the names of one or more candidates to a bal lot by the voter does not destroy the official indorsement on the ballot or render the same illegal. The court further held that the constitution guarantied to every male citizen having the proper qualifica. tions, the right to vote, and in doing so, to exercise his own choice, and that the legislature possesses no power to either directly or indirectly restrict that right, except in the case of those convicted of infamous crimes. In Bowers v. Smith, 111 Mo. 45, it was held that under the Missouri law an elector may vote for candidates whose names do not appear upon the official printed ballots, by adding their names upon the ballots in the proper places. In State v. Dillon, 32 Fla. 545, 14 South. Rep. 383, the court said: "There is no doubt in our minds about the right of the legislature to prescribe an official ballot. But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the constitution has guarantied to him this right. If the legislature can restrict the voter to some candidate whose name is printed on the official ballot, then it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice." We believe these cases fairly show the glaring incorrect. ness of the court's position in the principal case.

JETSAM AND FLOTSAM.

PROFESSIONAL SECRECY BETWEEN PHYSICIAN AND

PATIENT.

Professional secrecy of any kind never received its deserved recognition at common law. Communications made by a client to his counsel were practically the only professional communications protected. Confidential communications made by patient to physician receive no protection whatsoever, either in England or in this country. Balton v. Corporation of Liverpool, 3 Sm. 467; Duchess of Kingston's Case, 20 How. St. Fr. 643; Baker v. Railroad Co., L. R. 3 C. p. 91.

The Rule Stated.-But the embarrassments and vexations arising from leaving such communications unshielded soon became manifest, and the legisla tures of the various states undertook to remedy it. Accordingly, they passed acts prohibiting physicians from disclosing any information acquired by them while attending patients in a professional capacity. This is now established law, and extends to facts necessary to enable the physician to prescribe, and which are communicated to him for the purpose of enabling him to perform his professional duty. It also extends to information acquired by the physi cian through his own observation or examination. The information, however, must always be acquired while attending professionally. Eddington v. Ætna Life Insurance Co., 77 N. Y. 571.

This rule of privileged communication is very strict, so much so that even the death of the patient

does not render in infringible. A forcible statement of that part of the rule is that of Judge Earl in the case of Westover v. Ætna Life Insurance Co., 99 N. Y. 59. Speaking for the court, the judge said: "The purpose of the law would be thwarted, and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy from the communications and disclosures which a patient should make to his physician."

In this case it was also held that even an executor or administrator cannot waive the privilege and thus break the seal. Judge Earl expresses himself in the following language: "An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator."

But this is not so in all the states. In Indiana and Michigan any personal representative of the deceased is permitted to waive the privilege. Morris v. Morris, 119 Ind. 341; Fraser v. Jennison, 42 Mich. 206. Again, in Missouri, in the case of Thompson v. Ish, 99 Mo. 160, it was held "that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness."

As to its Limitation.-In some states the protec tion of professional secrecy is limited to civil actions, as in California, for instance, see Cal. Code Civil Proc. par. 181, subd. 4. On the other hand, in New York, there are some decisions holding that the statute extends to criminal actions. People v. Murphy, 101 N. Y. 126; People v. Brower, 53 Hun, 217. Again in a number of states the question is wholly undetermined. Some decisions hold that the statutes protecting professional secrecy extend to criminal actions, while others hold that they are only intended to protect matters civil. It is therefore quite difficult to state just how far the statutes actually do extend. This much, however, is certain, that professional communications are not privileged when they have an unlawful purpose, such as the commission of crime. Van Alstine, 57 Mich. 69.

As to its Waiver.-This privilege of professional secrecy is wholly for the benefit of the patient. Hence, the patient may waive the privilege. Nay, he may even constrain the physician to testify every. thing that he communicated to him in a professional way.

Where there are two physicians, the patient does not, by calling one of his physicians as a witness, waive his privilege to object to the testimony of the other.

Where the patient desires to claim the privilege and objects to the admission of the incompetent tes. timony, he should do so when it is offered at the trial. His neglect to object may operate as a waiver. Hoyt v. Hoyt, 112 N. Y. 493.

Whether a privilege once waived can be maintained at the second proceeding of the same case has been questioned. It might safely be stated, however, that at the present time the weight of authority is on the affirmative. See Grattan v. Insurance Co., 92 N. Y. 274; McConnel v. City of Osage, 45 N. W. Rep. 550; and Briesenmeister v. Knights of Pythias, 81 Mich. 525. In this last case Champlin, C. J., speaking for the court, said: "The privilege conferred is that the physician shall not disclose or testify to those matters which the statute inhibits without the consent of the party to whom the privilege is extended, and this objection may be interposed whenever and as