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Art. 4. Political Rights.

At the time of the adoption of the amendment suffrage was not coextensive with the citizenship of the State, nor was it at the time of the adoption of the Constitution. Neither the Constitution nor the Fourteenth Amendment made all citizens voters, and the provision of the State Constitution which confines the right of voting to male citizens of the United States, is no violation of the Federal Constitution. Minor v. Happersett, 21 Wall. 162.

The right of suffrage may be termed an artificial or remedial right and is not of the same character as certain natural rights. Downes v. Bidwell, 182 U. S. 244 (282).

The privilege of participation in the government is conferred as an act of sovereignty on those whose participation is supposed to be most beneficial to the State. Being a privilege no one is supposed to be injured when it is not conferred upon him. Some political privileges are the right of every person, whether an elector or not. Such is the privilege of meeting and discussing public affairs with others. Such also are the privileges of petition and remonstrance. Cooley on Torts, 37. See also Cooley's Const. Lim., 589.

Cooley (at p. 33) sums up the whole body of civil rights as the right to exemption from any restraint that has in view no beneficial purpose and the right to participate in all the advantages of organized society.

In Ashby v. White, Ld. Raym. 938, 1 Salk. 19, the returning officer who refused to admit a qualified elector to vote was held liable in damages at his suit. This case was followed in Lincoln v. Hapgood, 11 Mass. 350, although qualified by later English

cases.

In People v. Pease, 27 N. Y. 45, it was held that the inspectors of election are not judicial or administrative officers; that their decision is final only as to receiving or rejecting votes; but the question whether a voter was or was not entitled to vote is open to examination in subsequent proceedings upon any competent evidence; and that inspectors have no authority to reject a vote except in the special cases where such authority is expressly given by statute.

In Goetchens v. Matthewson, 61 N. Y. 420, an action was brought alleging that inspectors, intending to deprive the lawful voter of his rights as a citizen, refused to permit him to vote at

Art. 5. Religious Liberty.

an election. The inspectors denied that they rejected the vote maliciously, and claimed that their duties were judicial in their nature, and that they were not liable to a civil action for an error in judgment. The court held in opinions by Lott, Ch. C., and Dwight, C., the latter writing a very elaborate opinion, citing a large number of authorities, that the inspectors were liable to an action for the damages resulting from their refusal to accept the vote tendered by plaintiff.

In People ex rel. Stapleton v. Bell, 119 N. Y. 175, the rule was reiterated that inspectors of election are simply ministerial officers, and the board of inspectors has no discretionary powers to reject the vote of a person who, upon being challenged and upon application of the statutory test, has shown himself qualified to vote.

Upon the authority of the cases above cited it was said in People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360 (372), that when a voter at an election offers his vote to the inspectors, and, being challenged, takes the preliminary oath, and, after answering fully the questions touching his right to vote, offers to take the general oath, it is the absolute duty of the inspectors to receive his vote.

ARTICLE V.

RELIGIOUS LIBERTY.

By article 1 to the amendments to the Constitution of the United States, it is provided that Congress shall make no law respecting an establishment of religion or prohibiting a free exercise thereof.

By article 6, section 3 of the Federal Constitution it is provided that no religious test shall ever be required as a qualification to any office or public trust under the United States.

Article 1, section 3 of the State Constitution provides for the exercise and enjoyment of religious liberty. It is provided by that section that the liberty of conscience thereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.

It was never intended that the provision of the Constitution that Congress should make no laws respecting the establishment of religion or prohibiting the free exercise thereof, should be a pro

Art. 5. Religious Liberty.

tection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. Davis v. Beason, 133 U. S. 333.

It is said in the latter case by Mr. Justice Field, opinion p. 345: "It is assumed by counsel of the petitioner, that because no mode of worship can be established or religious tenets enforced in this country, therefore, any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practising them. But nothing is further from the truth. Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religious."

At the close of the official report, p. 348, will be found a note calling attention to the provisions of former constitutions of this State relative to freedom of worship.

The legislature has authority to protect the Christian Sabbath from desecration by such laws as it may deem necessary, and it is the sole judge of the acts proper to be prohibited with a view to the public peace on that day. Neuendorff v. Duryea, 69 N. Y. 557.

CHAPTER III.

ELEMENTS OF AN ACTIONABLE WRONG.

ARTICLE I. A legal right must be violated and damage

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III. The wrongful act must be the cause of the
injury.

IV. Malice as an element in torts

V. Torts arising from or connected with contracts.

ARTICLE I.

PAGE.

A LEGAL RIGHT MUST BE VIOLATED AND DAMAGE ENSUE.

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It is not enough that a legal right be violated, but in addition thereto there must follow damage to the party claiming to be aggrieved by such violation. This damage must be either proven by evidence, as is necessary in most cases, or is presumed by law for the protection of a right; hence has arisen much discussion carried on with great learning as to the true theory of recovery, in certain torts where no actual damage is shown to have been suffered by the injured party. A trespass upon land, where the trespasser has done no actual injury, is cited as an illustration of the difficulty surrounding the rule that there can be no recovery, except in case of damage. If, to the proposition that no recovery can be had unless damage is sustained, is added the statement that this damage may be either actual, as proven, or presumed by law, the difficulty will be much less, more particularly if it is borne in mind that recovery can be had in tort in those cases only where it is held that the wrongful act results in damage for which the actor is responsible by operation of positive law holding him to a liability. It is quite true that this does not entirely meet any theory of liability advanced or which can be made of universal application, but Judge Holmes (Common Law, p. 77), aptly and truthfully says on this point, "The law did not begin with a theory. It has never worked one out."

The phrase "damnum absque injuria" is defined in Fraser on Torts, p. 3, to mean actual and substantial loss without infringement of any legal right, in which case no action lies. On the

Art. 1. A Legal Right Must be Violated and Damage Ensue.

other hand, injuria sine damnum is defined by the same authority to be the infringement of a legal right without any actual loss or damage, and in such case a person whose right is infringed has no cause of action.

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Underhill (at pp. 6-7) discusses the meaning and effect of the terms damnum absque injuria and injuria sine damnum, of which he says: This jingle has probably puzzled many generations, but it comes to very little when dissected." The author then defines damnum as meaning damage in a substantial sense of money, loss of comfort, service, health, or the like. By injuria is meant an unauthorized interference, however trivial, with some general right conferred by law on the plaintiff. He adds, that "The maxims come to this, that no action lies for mere damage, however substantial, caused without breach of law; but that an action does lie for interference with another's legal private rights, even where unaccompanied with damage." Hence there must be an unauthorized act or omission causing either infringement of some general right, or inflicting some substantial private damage, and the injury must fall within some class recognized by law, and for which an action for damages is the appropriate remedy.

There is a material distinction between damages and injury. Injury is the wrongful act; damages the indemnity to the person who suffers loss or harm from the injury. The law has always recognized the difference between the things described, holding that no action will lie because the act is damnum absque injuria. 8 Encyc. of Law (2d ed.), 544, citing North Verger v. Voegler, 103 Ind. 314.

It may be stated as a general proposition that every man has a right to the natural use and enjoyment of his own property, and if while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one's own property may cause damage to another without any legal wrong. 8 Am. & Eng. Encyc. of Law, 695.

Bishop states (§ 22), that for the law to furnish redress, there must be an act which under the circumstances is wrongful, and it must take effect upon the person, the property, or some other legal interest of the party complaining. Citing Hutchins v. Hutchins, 7 Hill, 104. In that case Chief Judge Nelson said (p. 108): "Fraud without damage or damage without fraud, gives no cause of action; but where both concur, an action lies. Dam

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