In Re Corliss.

But we think it is an office of trust. It is true that orignally the United States had no pecuniary interest in the exhibition. The commissioners, however, were to be intrusted with a large supervisory and regulative control of the property sent for exhibition; and from the time the government gave its sanction to the exhibition, and especially after the President issued his proclamation, the honor and reputation of the United States were pledged for its proper management to its own citizens and to foreign nations. From that time the honor and reputation of the United States were largely in the keeping of the commissioners; and in this view there was a very delicate and important trust imposed in them. would be a narrow, and we think an improper interpretation, to hold that an office is an office of trust only when the officer has the handling of public money or property, or the care and oversight of some pecuniary interest of the government. But, even if it were so, there came a time when the United States did become pecuniarily interested in the exhibition by the appropriation of a million and a half of dollars for it, to be repaid out of the profits if any should accrue; and when, also, valuable property belonging to the United States was exhibited on the exhibition grounds. We repeat that the office is, in our opinion, an office of trust.

There is another point deserving mention before we pass to the next question. By the act approved June 1, 1872, the commission was incorporated under the name of "The United States Centennial Commission." Did this in any manner terminate or alter its official character? We think not. The change was merely formal, and made, we suppose, to facilitate the transaction of business. Indeed, in the papers annexed to the report of the commission to Congress, it appears that the commission had assumed the name of the United States Centennial Commission before its incorporation, and that the act of June 1, 1872, was passed on its recommendation. We do not see, therefore, why the commissioners were not as much United States officers after as before their incorporation.

2. We think a centennial commissioner, who was a candidate for the office of elector, and received a plurality of the votes, does not, by declining the office, create such a vacancy as is provided for by Gen. Stat. R. I., ch. 11, § 7. Section 7 is as follows:

"If any electors, chosen as aforesaid, shall, after their said election, decline the said office, or be prevented by any cause from serv

In Re Corliss.

ing therein, the other electors, when met in Bristol in pursuance of this chapter, shall fill such vacancies, and shall file a certificate in the secretary's office of the person or persons by them appointed."

Before any person can decline under this section, he must first be elected, and no person can be elected who is ineligible, or, in other words, incapable of being elected. "Resignation," said Lord COCKBURN, C. J., in The Queen v. Blizard, L. R., 2 Q. B. 55, "implies that the person resigning has been elected into the office he resigns. A man cannot resign that which he is not entitled to. and which he has no right to occupy."

3. We think the disqualification is not removed by the resignation of the office of trust, unless the office is resigned before the election. The language of the Constitution is, that no person "holding an office of trust or profit under the United States shall be appointed an elector." Under our law, Gen. Stat. R. I., ch. 11, §§ 1, 2, the election by the people constitutes the appointment. The duty of the governor is to "examine and count the votes, and give notice to the electors of their election." He merely ascertains - he does not complete the appointment. A resignation, therefore, after the election is too late to be effectual.

4. We think the disqualification does not result in the election of the candidate next in vote, but in a failure to elect.

In England it has been held that where electors vote for an ineligible candidate knowing his disqualification, their votes are not to be counted any more than if they were thrown for a dead man, or the man in the moon; and that in such a case the opposing candidate, being qualified, will be elected, though he has but a minority of the votes. King v. Hawkins, 10 East, 211, affirmed in 2 Dow, 124; Reg. v. Coaks, 3 El. & B. 249. But even in England, if the disqualification is unknown, the minority candidate is not entitled to the office, the election being a failure. Queen v. Hiorns, 7 Ad. & E. 960; Rex v. Bridge, 1 M. & S. 76. And it has been held, that to entitle the minority candidate to the office it is not enough that the electors know of the facts which amount to a disqualification, unless they likewise know that they amount to it in point of law. The Queen v. The Mayor, etc., of Tewkesbury, L. R., 3 Q. B. 629. In this country the law is certainly not more favorable to the minority candidate. State v. Giles, 1 Chand. (Wis.) 112; State v. Smith, 14 Wis. 497; Saunders v. Haynes, 13 Cal. 145; People v. Clute, 50 N. Y. 451; Commonwealth v. Cluley, 56 Penn. St.

In Re Corliss.

270. The question submitted to us does not allege or imply that the electors, knowing the disqualification, voted for the ineligible candidate in willful defiance of the law; and certainly, in the absence of proof, it is not to be presumed that they so voted. The only effect of the disqualification, in our opinion, is to render void the election of the candidate who is disqualified, and to leave one place in the electoral college unfilled.

5. Our statute, Gen. Stat. R. I., ch. 11, § 5, provides that "if by reason of the votes being equally divided, or otherwise, there shall not be an election of the number of electors to which the State may be entitled, the governor shall forthwith convene the general assembly at Providence, for the choice of electors to fill such vacancy, by an election in grand committee." We think this provision covers the contingency which has happened, and that, therefore, the general assembly in grand committee can elect an elector to fill up the number to which the State is entitled. The law of the United States provides that "whenever any State has held an election for the purpose of choosing electors, and has failed to make choice on the day prescribed by law, the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct." U. S. Gen. Stat. p. 21, § 134.

THOMAS DURFEE,

W. S. BURGES,

E. R. POTTER,

CHARLES MATTESON.

STINESS, J., delivered a dissenting opinion.

Municipal corporation -- Liability of, for injury occasioned by violation of

ordinance.

A house in a city was destroyed by fire set by sparks from an engine which was, by an ordinance, a nuisance subject to abatement, but which the city had neglected to abate. Held, that the owner of the house could not maintain an action against the city.*

HIS action was brought by Mrs. Rebecca Davis, against the city

of

house, which was accidentally burned down, in April, 1870, by sparks and fire communicated from a steam-engine used and owned on an adjoining lot by one R. W. Sharp. The original complaint contained but a single count, which alleged the plaintiff's ownership of the house, and of the lot on which it was situated, with the value of the annual rent; the erection and use of the steam-engine

*See Hill v. Boston, ante, 332; Forsyth v. Mayor, 12 Am. Rep. 576; Wheeler v. Cincinnati, 2 id. 368; Fisher v. Boston, 4 id. 196; Grant v. Erie, 8 id. 272; Hayes v. Oshkosh, 14 id. 760; Heller v. Sedalia, id. 444.

Davis v. City Council of Montgomery.

on the adjoining lot by said R. W. Sharp; the destruction of plaintiff's house by sparks and fire communicated from said engine; the creation of the defendant as a municipal corporation, by act of the general assembly of Alabama, with certain rights, privileges, and immunities, including the power to abate nuisances, which powers, etc., were vested in said corporation for the benefit of its citizens, and to enable it to protect them against all danger and damages from all nuisances within the city; the acceptance of the charter by the corporation, its exercise of the powers conferred, and its consequent duty to prevent and abate all nuisances; the passage of certain ordinances, by the corporate authorities, as authorized by the charter, defining and declaring nuisances within the city limits, and providing for their removal and abatement; notice to the officers of the city that the said steam-engine, as used by said Sharp, was a nuisance as defined and declared by said ordinances; a request to them by plaintiff to remove or abate said engine as a nuisance, and their failure and refusal to do so.

The city ordinances defining and declaring nuisances, and providing for their removal and abatement, as set out in the complaint, were as follows: "All chimneys, stoves, furnaces, or other fireplaces on any premises, liable to burn and endanger the property adjoining, are hereby declared to be nuisances; and the owner or lessee of the premises shall repair or remove such chimney, stove, or furnace, according to the direction of the city council." "Any person, neglecting beyond a reasonable time to comply with the order of the city council, shall be fined ten dollars for each day such nuisance may continue." "Every person who shall make a tan-yard, slaughter-house, or butcher-pen, or engage in any business which will endanger the adjoining property, or affect the comfort or health of the people, shall be fined twenty dollars for each day the nuisance shall continue." If the owner of the nuisance shall fail to remove it, the city council shall order it to be abated, at the cost of the person causing the nuisance." If the person causing the nuisance be insolvent, or unable to pay the cost of its removal, or absconds, then the costs of abating the nuisance shall be taxed against the property on which it is situated, and be col'ected at the same time and in the same manner as the annual taxes."

66

The averments of the complaint, as to the defendant's duty to abate and remove the said steam-engine as a nuisance, and liability