Duke v. Asbee, 33 N.C. 112, 11 Ired. 112 (1850)

June 1850 · Supreme Court of North Carolina

33 N.C. 112, 11 Ired. 112

ANDREW DUKE vs. SOLOMON ASBEE.

A person, who, on the day of, or previous to, an election, furnishes liquor, cither at the request of a candidate or any other person, with a belief that such furnishing of liquor is for the purpose of influencing the electors, cannot recover his account against the person ordering the supplies, because the contract is against good morals, and the purity of elections, and because such oonduct is prohibited by our Statute law.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1850, his Honor Judge Ellis presiding.

This was an action of assumpsit upon an account.

The plaintiff was introduced as a witness under the book-debt-law, and testified, that in the summer of 1849, the defendant was a candidate for the office of Superior Court Clerk for the County of Currituck, and that the plaintiff retailed spirituous liquors in the said County : That the defendant, during the canvass between himself and the present incumbent, requested of the plaintiff repeatedly to let him have and to furnish his friends, upon public occasions, what liquor and other articles in the said account enumerated, by the small measure or otherwise, they might desire: That, upon the call of Mr. As-bee, previous to the election day, for liquor and other articles for himself and friends in the election, he set out accordingly as he or they may have requested. At other times, when the defendant was not present, according to a previous understanding with the defendant, and upon the call of his friends in the election, he furnished them with liquor, and all of which was drunk on public grounds at public gathering places; and the plaintiff had engagements of the like kind with other candidates, during the said election year, and, under the said engagements, furnished them and their friends with liquor in the like way: That the plaintiff furnished to all persons indiscriminately, who called upon him in the names of the candidates liquor, &c., under the arrangement aforesaid9 both before the election and on the day thereof.

The plaintiff further swore that he did not deal out the liquor, &c., as above stated, with any design of influencing the election, and did not vote for the defendant.— The plaintiff here closed his case : and the defendant in„ sisted, that the plaintiff was not entitled to recover, because the contract was against good morals and therefore void, upon the ground that treating at elections was prohibited by statute and a penalty annexed.

The defendant then insisted, that treating at elections was prohibited by law, a penalty being attached thereto, and requested his Honor to charge the jury, if the defendant’s object was to influence votes at the election, and the plaintiff knew it, then the plain tiff could not recover.

The presiding Judge instructed the jury, that if they believed the testimony, the plaintiff was entitled to recover.

The jury returned a verdict for the plaintiff, upon which, judgment was given. Rule for a new trial granted and discharged. Appeal to the Supreme Court prayed and granted.

II. Burgwin, for the plaintiff.

Jordan, for the defendant.

Nash, J.

In 1801, the Legislature passed an act to punish the crime of bribery at elections. Rev. Stat. ch. 52. sec. 23. The preceding section of the act makes it highly penal for any person, who is a candidate for a seat in the legislature, to give, either directly or indirectly, any money, gift, gratuity, or reward, &c. in order to be elected, and embraces all persons who shall do either of the acts “ to procure any other person to be elected.”— The penalty is a forfeiture of four hundred dollars. The 2Srd sec. forbids treating with either meat or liquor, on any day of election or on any day previous thereto, with intent to influence the election, under the penalty of two hundred dollars. The 22nd sec. of the act of 1836 is taken from the 11th sec, of the 116th ch. of an act passed in 1777, and the 23rd was originally passed in 1801. The policy of these two acts is the same with that of the British Statute passed in the 7th of William the 3rd, ch. 4th. It is remarkable, that the acts of the General Assembly passed in 1760, and the act of 1877, both omit a provision, contained in the Statute of William, and a most important one, for the suppression of the offences at which they were aimed. The Stat. of William, among other acts of bribery, enumerated the giving of “ meat, drink, and entertainments, &c.” These are omitted in our acts of 1760 and 1777; but the material words embracing them all are brought forward in the act of 1801. I mention these circumstances to show the anxiety, which the legislature has at different times exhibited, to keep pure the elective principle of our government.

The acts of our assembly bear so striking a likeness to the English Statute, that, although the latter never was in force here, the decisions of the English Courts under it are very safe guides to us. The case of Rebbans v. Crickett, 1 Bos. and Pul. 264, was very similar to the one now under consideration. The 2ad count was for provisions furnished the voters at the request of the defendant, and it was decided the plaintiff could not recover, because the contract was malum prohibitum, of a very serious nature in the opinion of the legislature, who had drawn a very strict line, which was not to be departed; from. This doctrine was affirmed in Lophouse v. Wharton, 1 Campb. 550, note; nor is it necessary that the person treating should be the agent of the candidate, or act with his knowledge ; in either case, he, the person treating,is within the provisions of the statute. Ward v. Nanny, 3 Car. and P. 399; 14 E. C. L. R. 369. If a mercer sells ribans, knowing that they are to be distributed among voters, he cannot recover the price. Richardson v. Webster, 3 Car. and P. 128; 14th E. C. L. R. 238 ; and, so, if a candidate pay the expenses of buying out the freedom of voters or pay their travelling expenses, they incur the penalty of the statute. 1st Sel. N. P. page 12. Bayntun v. Cuttle, 1st M. and Rob. 265. Such have been the de< eisions of the Court under the English Statutes, and they are safe guides to us in putting a construction upon our act, if we need any. The language of the act of 1801, Rev. Stat. ch. 52, sec. 23, is plain and perspicuous : “ If any person shall treat with either meat or drink on the day of election or on any day previous thereto, with intent to influence the election, &c.” It is then illegal to treat at any election for the purpose set forth in the act, and if so, a contract, founded on such act, is illegal and void, and can not be enforced in a Court of justice.— Whether, therefore, the person who gives the bribe, be a candidate or not, or whether he be the agent of one, or whether or not he acts with the knowledge or consent of a candidate, he incurs the penalty of the act, if bis object be to influence the election ; and any contract made by him, with any person, for payment of such treating, is null and void. No one, on reading this case, can fora moment doubt the intention, with which the treating was done ; the testimony comes from the plaintiff. The defendant was a candidate for the clerkship of the Superior Court of Currituck County, and during the canvass, requested the plaintiff to let him have “ and to furnish his friends on public occasions, what liquor and other articles they might want.” Can any one hesitate for a moment, as to the object of the defendant: and can any doubt exist as to the knowledge of the plaintiff of his object and intention. It is true, the plaintiff swore he had no intention, in furnishing the articles contained in his account, to influence the election, as he voted against the defendant, and as he furnished the opposing candidate and his friends in a similar way. If this were a suit against the plaintiff, to recover the penalty inflicted by the act, it would become important to enquire into his object and intention in furnishing the liquor and provisions; aud whether he could escape this responsibility by showing, that instead of pandering the to passions of the friends of one of the candidates, he had furnished his efforts to corrupt those who were opposed to him. For the present, our enquiry is not, whether he- intended to influence the election, but whether the defendant did not and whether he did not know such to be the fact. The jury were instructed, if thej believed the evidence, the plaintiff was entitled to a verdict. In this there was error. They ought to have been instructed, that, if, from the testimony, they believed it was the intention of the defendant to influence the election by the meat and drink furnished by the plaintiff, and that intention was knowix to the plantiff, the latter could not recover.

If in England the purity of the ballot box is considered so important, how much more sedulously ought it to be guarded hei’e. Upon the virtue and intelligence of the people our Institutions rest; nor can they be endangered, until these principles are lost sight of. The legislature has done its part, and if its enactments ai’e enforced, by those to whom the duty belongs, much may yet be done to give them stability and vigor. And, among the most corrupting pi’actices of candidates for office, is the one we are considei’ing in this case ; it is bribery of the most vicious and destructive tendency, and deserves to find no favor, either in courts of justice or from the people themselves. Whenever the offence is known to exist, the law ought to be rigidly enforced.

For the error in the charge pointed out, the judgment, ought to be reversed and a venire de novo awarded.

Peu Cueiam. Judgment reversed and a venire de novo awarded.