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case of Symmes v. Frazier the court said: as P was acting as the servant of M. It is "Any other construction would be extremely otherwise if the recapture is made on the mischievous in its effects, and would in most party's own account independent cases tend to convert an honest finder of quest of, or information furnished by anlost or stolen property into a fraudulent other, and in the absence of any promise ;84 concealer of it. It is, therefore, for the and one who has recovered a reward through interest of the loser, and certainly tends to information fạrnished by a third party, or secure the integrity of the finder, that when with his aid, is not liable to an action by said ever any proportion of the property is found party to recover any part of the reward, if and actually restored, under circumstances it was his intention to act on said informawbich leave no doubt of the faithfulness and tion for his own benefit. 86 integrity of the finder, this latter should have

St. Paul, Mion. ERNEST T. Dixon. such part of the reward which may have been

84 Wilson v. Wallace, 64 Miss. 13. offered as will be proportionate to the prop 84 Falsick v. Barber, 1 M. & S. 108; Bagnall v. Barerty so restored.”

It has been held, how. nard, 59 Hun, 151. ever, that an offer of reward, made for the capture of two persons, does not entitle the

ELECTIONS - POWER OF LEGISLATURE TO captor of one to recover pro tanto.80 In de


BALLOT. ciding this case the court said: “This is an entire proposition which when acted upon

CHAMBERLIN v. WOOD. by any person would constitute a contract single in its nature, and not subject to ap Supreme Court of South Dakota, November 20, 1901. portionment.” When a reward was offered 1. Const. art. 6, § 19, provides tbat elections sball for the apprehension of a certain forger and

be free and equal, and no power, civil or military,

shall at any time interfere to prevent the free exer the recovery of the moneys, both the appre cise of the right of suffrage. Article 7, § 1, provides hension of the forger and the recovery of wbat shall constitute the qualifications of an elector,

and declares that one possessing these qualifications the moneys were held to be conditions prec

shall be deemed a qualified elector at such election. edent to the payment of the reward ;$1 and The constitution makes no further provision as to the a reward offered for the arrest and conviction exercise of the right of suffrage. Held, that the of an offender is not apportionable, and to

legislature was not inbibited by the constitution from

passing an election law requiring the names of all enable one to recover he must show that he

candidates to be certified by law, and printed on an is entitled to it as well for the detection as official ballot, thus, in effect, denying to electors the for the conviction of the offender. 82

right of writing on the official ballot tbe name of a

candidate whose name has not been properly certi. Agency.-One may perform the service or

fied. do the act for which the reward is offered,

CORSON, J.: This an appeal from an order as an agent or servant of a third party,

sustaining a demurrer to plaintiff's complaint. and in such case the third party is entitled The appeal has been dismissed as to the defendto recover the reward. The principle is well ants George D. Wood and F. C. Hedger, leaving illustrated in the case of Pruitt v. Miller, the defendant E. H. Alley the only respondent. where M arrested a fugutive and while on

The action was brought by the plaintiff to rethe way to deliver him to the sheriff be

cover of the defendants damages for unlaw

fully depriving him of the office of county com escaped, and afterward at the request of and missioner of Brown county. upon information furnished by M, P prom It appears from the complaint that no certifiised to and did recapture bim and unbe. cate of nomination of the plaintiff for office of known to M delivered bim to the sheriff. It

county commissioner was filed in the office of the was held that M was entitled to the reward,

auditor within the time prescribed by law, and

that the method of voting for said plaintiff as v. Wilson, 5 La: 397; Symmes v. Frazier, 6 Mass. county commissioner was by writing bis name 344.

upon the official ballots used at said election, and 50 Blain 'v. Pacific Express Co., 69 Tex. 74.

by making a cross at the left of his name upon 81 Jones v, The Pbænix Bank, 8 N. Y. 228. See

the said ballots. While the trial court has not Furman v. Parke, 21 N.J. L. 810.

stated the grounds upon which the demurrer was 82 Van Horn v. Ricks Water Co, 115 Cal. 448; Pool v. City of Boston, 59 Mass. 219.

sustained, it seems to be assumed by the appellant, 83 Montgomery Co. v. Robinson, 85 III. 174; Pruitt

and we may presume that it was made upon the Miller, 3 Ind. 16; Grady v. Crook, 2 Abb. N. Cas.153 ground that as no certificate of the nomination 53.

of the appellant was filed in the office of the


county auditor 20 days before the election, and, therefore, as to what right an elector has in this as his name was not printed on the official ballot, state, must be determined by an examination of its he was not legally a candidate, and that the votes constitution and laws. It is scarcely nocessary to cast for him by writing the description of the repeat what has been frequently said by this office, bis name thereunder, and a cross at the court, that, presumptively, the law enacted by left thereof, was not a compliance with the stat the legislature is valid, and it must be so held ute, and he was not, therefore, legally elected to unless it is clearly in conflict with or repugnant the office.

to some express provision of the constitution, or An important question is therefore presented the legislation has been expressly inhibited by for the determination of this court, namely, can a

the constitution from enacting the same. person be voted for and elected to an office under With these preliminary observations, we will the laws of this state, who has not filed a certifi examine the provisions of the constitution of this cate of bis nomination in the proper office within state that bear upon the question of the right of the time prescribed by law, and whose name is suffrage. Section 19, art. 6, of the constitution, not printed as a candidate upon the official bal provides, "Elections shall be free and equal, and lots? Under what is known as the "Australian no power, civil or military, sball at any time inBallot Law,” enacted by the legislature of this terfere to prevent the free exercise of the rigbt of state, and in force at the time of the election set suffrage." Under these provisions the elector out in the complaint, it is provided that an official cannot legally be physically restrained, in the ballot shall be printed at the expense of the exercise of his right by either civil or military county, upon which the names of all candidates authority; nor can there be inequality, and every for office, who have properly filed certificates of voter shall have the same right as every other nomination, shall be printed, and the elector is voter. Certainly, under the laws we are consid. authorized to indicate his cboice for such candi. ering, all electors are vested with the same date as he may desire to vote for by making a rights, namely, the rights of appearing at an cross at the head of the party ticket or at the election and voting in the manner prescribed by left of the name of the candidate for whom he law. Section 1, art. 7, provides wbat sball condesires to vote. No provision is made in the stitute the qualifications of an elector, and one law, as it stood in 1895, for writing the name of possessing these qualifications it is declared any person upon the ballot. This court has held “shall be deemed a qualified elector at such elecin a number of cases, beginning with Vallier v. tion." It will be noticed that in neither of these Brakke, 7 S. Dak. 343, 64 N. W. Rep. 180, that the sections is it provided when, bow, where, or unwriting of a name upon the official ballot in. der what oonditions the elector shall exercise the validated the same. In Parmley v. Healey, 7 S. right of suffrage. The framers of the constituDak. 401, 64 N. W. Rep. 186, this court, speaking tion seem to have designedly left the right of by Mr. Justice Fuller, says, “And, moreover, suffrage at this point to be regulated and gov. the writing of name upon a ticket identifies erned by such laws as the legislature might deem the voter, and invalidates the entire ballot, and proper to enact. The constitutional convention subjects the one who places it there to a criminal and the legislature are equally the representatives prosecution."

of the people, and the written constitution marks The appellant contends, however, that under only the degree of restraint which, to promote the constitution of this state an elector has the stable government, the people impose upon themright at any election to vote for any person for selves; but whatever the people bave not, by an office he may desire, and that the act of the their constitution, restrained themselves from legislature, if it is to be so construed as to de doing, they, through their representatives in the prive the elector of the right to write the name legislature, may do. The legislature, just as of the candidate for whom he desires to vote upon completely as a constitutional convention, repthe official ballot, is unconstitutional. The right resents the will of the people in all matters left of suffrage is not a natural or civil right, but a open by the constitution. Com. v. Reeder, 171 privilege conferred upon the person by the con. Pa. 505, 33 Atl. Rep. 67, 33 L. R. A. 141. Unless, stitution and laws of the state. Judge Cooley, in therefore, the legislature is inbibited from eacthis work on Constitutional Limitations, says: ing the law we are considering, it is as much the Participation in the elective francise is a priv will of the people as though expressed in the ilege, rather than a right, and it is granted or constitution. Let us ask, therefore, what prodenied upon grounds of general policy." Cooley, vision is there in the constitution inhibiting the Const. Lim. (6th Ed.) 752. In People v. Barber, lawmaking power from providing wben, how, 48 Hun. 198, the Supreme Court of New York and under what regulations and conditions the says: “The elective suffrage is not a natural elector may exercise the right of suffrage? The right of the citizen. It is a franchise dependent

constitution has not, as we have seen, prescribed upon the law by which it must be conferred to any conditions or rules governing the exercise of permit its exercise. * * It is a political right, the right; nor has it inhibited the legislature to be given or withheld at the pleasure of the from prescribing such rules, regulations, and lawmaking power of the sovereignty." 10 Am. conditions as it might deem proper and for the & Eng. Enc. Law (2d Ed.), 568. The question, public interests. The lawmaking power bas


taken the elector at the point where the constitu ple, and not because it is wise or unwise." In tion has left him, and has provided when, in speaking of one possessed of all the qualifications wbat manner, and under what restrictions he of an elector, the court says: “Then he is an may exercise the right of suffrage, and in so do elector, and entitled to vote as the law may preing bas provided : First, that he must exercise scribe. Being an elector, and therefore entitled that right by using an official ballot; second, to vote at all elections, the constitution of 1874, that he must designate in the manner specified as well as those which preceded, goes a step bis choice of candidates whose names are upon further, and in section 5, art. 1, declares, “All the official ballot, and whose names can only be elections sball be free and equal;' that is, the placed tbere by a compliance with the law; voter shall not be physically restrained in the tbird, it has, in effeet, denied to the elector the exercise of his right by either civil or military right to write the name of a candidate for whom authority. Nor sball there be inequality. Every he desires to vote upon the official ballot, or voter shall have the same rigbt as every other otherwise deface the same, by declaring that "no voter.” And the court, further on the opinion, elector sball place any mark upon his ballot by says: "Can they [constitutional provisions], by which it may afterwards be identified as the one any reasonable interpretation, include an absolute voted by him." The law, in form, applies equally right to vote for every candidate of the group of to all electors without discrimination, and one candidates for the same office?

The elector therefore possesses all of the rights, and question now is as tc the interpretation to be put no more, of every other elector. The legislature, upon the language specifying the qualifications therefore, having in effect limited the right of of the voter wbo has by law a right to vote at the elector to voting for candidates whose names the election for the candidates for this office. are printed on the official ballots, he can only No sound reason has been urged in the argu. exercise the right in the manner prescribed. But ment why we should enlarge the scope of the the elector is not thereby necessarily deprived of words 'sball be entitled to vote at all elections' the right of suffrage, as he has the same right by practically adding, also for every candidate as any other elector to secure the printing of the of a group of candidates for the same office.' name of his candidate upon the official ballot in The constitution does not say and has never been the manner prescribed by law, namely, by nomi interpreted to so mean.” It will be seen that nation of some political party, or by securing the the court in this case goes much further than we signatures of 20 electors, in the case of county are required to go in the case at the bar. There office, to a certificate. This may occasion the the elector was limited by the law to voting for elector some inconvenience and labor, but these six candidates out of the seven, and it was conconstitute no objection to the law. In fact, the ceded that, if limited to six, he might be limited law requires many acts to be done by the to a less number; and the court sustained the act elector not required under former laws, but of the legislature for the reason that it was not these requirements have been generally held to inbibited by the constitution from enacting the be constitntional. We see no reason why the law same. In the case at bar, as we have seen, no as laid down by the courts in regard to those elector is deprived of his right to vote for the requirements should not be applicable to this candidate of his choice, but, in order to exercise case.

the right, he must see tbat the name of his canThe Supreme Court of Pennsylvania, in Com. v. didate is upon the official ballot. We do not feel Reeder, supra, bas recently decided an important called upon to give the constitution of this state constitutional question very much in point in the a forced or strained construction in order to decase at bar. A law was enacted by the legisla feat a law so beneficial to the people of this ture of that state for the election of seven judges state, and so well calculated to prevent fraud, of the superior court, which provided that no bribery, and corruption at our elections. To electors should be permitted to vote for any construe the constitution as giving the right to number exceeding six of the judges to be so the elector to write upon the official ballot the elected. It was contended by certain electors name of any candidate, and to deny to the legisthat this act was unconstitutional in tbat it lature the right to prescribe upon what condideprived the electors of the right given them by tions the elector may exercise the right of sufthe constitution to vote for the entire seven frage, would, in effect, destroy the more imjudges. But the court held against this conten portant features of our election law in securing tion, and that the law was constitutional. The the purity of elections and preventing the fraud. court in a very able opinion discussed the con. bribery, and corruption at elections existing stitutional question at length, and in the course under the former system; for, if the elector of the opinion, in speaking of the will of the may write the name of a candidate upon the offpeople as expressed in the act of the legislature, cial ballot, this necessarily would constitute a says: “We peruse the expression of their will in “distinguishing mark," and eliminate from our the statute, then examine the constitution, and system the secrecy intended, and thereby enable ascertain if this instrument says "Thou shalt not,' bribery at elections to be carried on with safety. and, if we find no inhibition, then the statute is A candidate desiring to purchase a number of the law simply because it is the will of the peo 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 otber 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 inbibited 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, thougb the election law of this state has been in effect for more tban 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 bave 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 wbich 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 bave beld 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.

erally without success. This system origipated in Australia in 1857, and its essential features were & 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 de. stroying 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 wbom be 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 con. stitutional guaranties of the voter. Cbateau 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.es. tablished rule safe.guarding the voter's independ. ent choice as to candidates. On this point also, the clear statement of Justice Fuller,in bis vigorous dis. senting opinion in the principal case, cannot be im. proved: "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 por reasonable to say that the right of suffrage can be freely, equally and independently exercised under a statute wbich merely gives to qualified electors an option to vote for persons wbose 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 manilestly absurd to hold that the elector who is thus deprived of bis 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 be may choose; and statutes which deprive him of such right have been, so far as my research exteads, invariably beld for naught in every jurisdiction with the exception of tbis." The "research" of Justice Fuller seems to have been unusually thorough, as be cites to the paragraph just quoted practically all the attborities on this impor: tant rule of law. Maynard v. Board of Canvassers, 84 Micb. 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 III, 553; Bowers v. Smith, 111 Mo. 46.

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

NOTE.--Constitutionality of Act Restricting the Right to Vote to Candidates on Oficial 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.

pealed from, that the name of a person for whom the does not render in intripgible. A forcible statement voter desires to cast a ballot could not be written of that part of the rule is that of Judge Earl in the upon the official ballot. The court held that votes case of Westover v. Ætna Life Insurance Co., 99 N. cast for a person pot nominated for office in any of Y. 59. Speaking for the court, the judge said: “The the ways provided by statute, but whose name, not purpose of the law would be thwarted, and the pol. being printed upon the official ballot, was written by icy intended to be promoted thereby would be deeach voter in a blank space upon the same and marked feated, if death removed the seal of secrecy from the with a cross, are legal votes; and that the mere addi. communications and disclosures which a patient tion of the names of one or more candidates to a bal. should make to his physician.” lot by the voter does not destroy the official indorse. In this case it was also held that even an executor ment on the ballot or render the same illegal. The or administrator cannot waive the privilege and thus court further held that the constitution guarantied

break the seal. Judge Earl expresses himself in the to every male citizen having the proper qualifica following language: “An executor or administrator tions, the right to vote, and in doing so, to exercise does not represent the deceased for the purpose of his own cboice, and that the legislature possesses no making such a waiver. He represents bim simply in power to either directly or indirectly restrict that reference to rigbts of property, and not in reference rigbt, except in the case of those convicted of in to those rights which pertain to the person and char. famous crimes. In Bowers v. Smith, 111 Mo. 45, it acter of the testator." was beld that under the Missouri law an elector may But this is not so in all the states. In Indiapa and vote for candidates whose names do not appear upon

Michigan any personal representative of the deceased the official printed ballots, by adding their names is permitted to waive the privilege. Morris v. Mor. upon the ballots in the proper places. In State v. ris, 119 Ind, 341; Fraser V. Jenpison, 42 Mich. 206. Dillon, 32 Fla. 545, 14 South. Rep. 383, the court said: Again, in Missouri, in the case of Thompson v. Isb, "There is no doubt in cur minds about the right of 99 Mo. 160, it was held "that when the dispute is be. tbe legislature to prescribe an official ballot. But tween the devisee and heirs at law, all claiming un. the legislature cannot, in our judgment, restrict an der the deceased, either the devisee or heirs may call elector to voting for some one of the candidates the attending physician as a witness." whose names have been printed upon the official As to its Limitation.-Io some states the protec. ballot. He must be left free to vote for whom he tion of professional secrecy is limited to civil actions, pleases, and the constitution bas guarantied to him as in California, for instance, see Cal. Code Civil this right. If the legislature can restrict the voter Proc. par. 181, subd. 4. On the other hand, in New to some candidate whose name is printed on the York, there are some decisions bolding that the stat. official ballot, then it may prescribe such regulations ute extends to criminal actions. People v. Murphy, for getting the names of candidates on the ballot as 101 N. Y. 126; People v. Brower, 53 Hun, 217. Again will completely destroy the liberty of choice." We in a number of states the question is wholly undebelieve these cases fairly show the glaring incorrect. termined. Some decisions hold that the statutes ness of the court's position in the principal case. protecting professional secrecy extend to criminal

actions, while others hold that they are oply intended

to protect matters civil. It is therefore quite difficult JETSAM AND FLOTSAM.

to state just how far the statutes actually do extend. This much, however, is certain, that professional

communications are not privileged when they have PROFESSIONAL SECRECY BETWEEN PHYSICIAN

an unlawful purpose, such as the commission of PATIENT.

crime. Van Alstine, 57 Mich. 69. Profession&l secrecy of any kind never received its As to its Waiver.—This privilege of professional deserved recognition at common law. Communica secrecy is wholly for the benefit of the patient. tions made by a client to his counsel were practically Hence, the patient may waive the privilege. Nay, be the only professional communications protected. may even constrain the physician to testify every. Confidential communications made by patient to thing that he communicated to him in a professional physician receive no protection whatsoever, either in way. England or in this country. Balton v. Corporation Where there are two physicians, the patient does of Liverpool, 3 Sm. 467; Duchess of Kingston's Case, not, by calling one of his physicians as a witness, 20 Huw. St. Fr. 643; Baker v. Railroad Co., L. R. 3 waive bis privilege to object to the testimony of the C. p. 91.

other. The Rule Stated.-But the embarrassments and Where the patient desires to claim the privilege vexations arising from leaving such communications and objects to the admission of the incompetent tes. upsbielded soon became manifest, and the legisla. timony, be should do so when it is offered at the trial. tures of the various states undertook to remedy it. His neglect to object may operate as a waiver. Hoyt Accordingly, they passed acts probibiting physicians v. Hoyt, 112 N. Y. 493. from disclosing any information acquired by them Whether a privilege once waived can be maintained while attending patients in a professional capacity. at the second proceeding of the same case has been This is now established law, and extepds to facts questioned. It might safely be stated, however, that necessary to enable the physician to prescribe, and at the present time tbe weight of authority is on the wbich are communicated to him for the purpose of affirmative. See Grattan v. Insurance Co., 92 N. Y. enabling him to perform his professional duty. It 274; McConnel v. City of Osage, 45 N. W. Rep. 550; also extends to information acquired by the physi. and Briesenmeister v. Knights of Pythias, 81 Micb. cian through his own observation or examination. 525. In this last case Champlin, C. J., speaking for The information, however, must always be acquired the court, said: “The privilege conferred is that the while attending professionally. Eddington v. Ætna physician shall not disclose or testify to those mat. Life Insurance Co., 77 N. Y. 571.

ters which the statute inbibits without the consent This rule of privileged communication is very of the party to wbom the privilege is extended, and strict, 80 much so that even the death of the patient this objection may be interposed whenever and as


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