or rejected the fruits. The law requires him to so far accept the fruits of his servant's misconduct as to be responsible therefor. Our own statute is here an embodiment again of these principles of the common law. Section 1374: "Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." Section 1375: "A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service." By the last section the principal is never liable for wrongful acts not committed by the agent as a part of the transaction, unless he authorized or has ratified them. If the jury believed Bruns, he never authorized the purchase, and he never ratified it "by accepting the benefit, with the notice thereof." Section 1349, supra. And this is the more especially the proper rule in an action of deceit, as applied to the facts of this case, where the defendant Howard was at most a special agent, of whose power and authority the plaintiff was charged with notice. Nixon v. Palmer, 8 N. Y.

398; Beals v. Allen, 18 Johns. 363.

It was therefore error to give this instruction to the jury without in some manner informing them that such adoption of the purchase must be accompanied with knowledge or notice of the material facts of the transaction; and as the action is joint, and all the defendants have appealed, a new trial must be granted as to all.

The tide seems to have been strongly with the plaintiff in the trial of this case, and the defendants seem to have been surprised at the final turn taken by plaintiff's attorneys in its submission to the jury, and the defense was not fully developed. The case is one bristling with close and difficult questions of law, which we have not seen fit to determine, if proper to do

so in this premature presentation to the court; and, as the case must go back for a new trial, we have thought best to send it down unhampered by "the law of the case," with the remark that all other errors in the case assigned and presented in argument are left open and undetermined, subject to future examination and determination, should the case ever find its way here again. The judgment is reversed, and a new trial ordered. All the justices concurring.

FARREN, Respondent, v. COMMISSIONERS OF BUFFALO COUNTY, Appellants.

1. Constitutional Law-Legislative Power.

R. St. U. S. § 1860, confers express power upon the legislature of the territory to prescribe the qualifications of voters.

2. Voters-Elections-Counties-Registration-Qualifications of

Voters.

Section 47, c. 27, Pol. C., after prescribing certain qualifications, provides that all persons who "shall have complied with the provisions of any law which is now, or may in the future be, in force relating to the registration of voters, shall be entitled to vote." After this there was a law passed with reference to registration, (Laws 1881, c. 122,) whereby, to be entitled to vote, the elector must have been registered, or must qualify, at the time of offering his vote, by furnishing the judges with his affidavit, stating certain facts showing him to be a legal voter, etc. Held, that the requirements of the act of 1881 were not mere regulations, but qualifications that the elector must have met before being entitled to vote; and an election to change the county-seat, where there had been no registration, or qualification of voters by affidavit, as required by said act, (on contest for that purpose,) held, void.

3. Registration Act 1881, c. 122, § 15-County Boundaries — Indian Reservation.

The registration act 1881, c. 122, § 15, applies to counties bordering on the Missouri river, etc. The act 1873, c. 16, § 26, bounds Buffalo county by the Missouri river, but that part is an Indian reservation. Held, that the act applied to Buffalo county.

(Argued May 21, 1887; affirmed May 26, 1887; opinion filed February 14, 1888.)

Appeal from the district court of Brule county; Hon. BARTLETT TRIPP, Judge.

J. M. Long, for appellant.

The only ground upon which this contest is based is the allegation that there was no meeting of the board of registry prior to said election, and no evidence was furnished by the voters at the time of presenting themselves to the judges of election and voting of their right to vote.

For the purposes of this case, under the registry act, the court held that Buffalo county was one of the counties in which the registry law was in force.

Buffalo county was organized in January, 1885. The registration act went into force in March, 1881, and was to be in force in the counties bordering on the Missouri river. There was no such county as Buffalo, in which this law could be enforced. The law provides that any other county could adopt it if they so desire. There is no claim that Buffalo county ever adopted this act, and, being special legislation, there can be no implication drawn from the law that it was to extend to and be in force in counties "in future," and an outlying district is not a county until it is organized for political purposes. The law does not say, "all counties now or hereafter bordering on the river," but says, "in those counties bordering on the Missouri river." In fact, there is not now, and never has been, any such a county bordering on the Missouri river. A portion of the Sioux Indian reservation lies between the county and the river. Section 1839, U. S. Statute, in creating Dakota, declares that this very district shall be excepted out of the boundaries, and constitute no part of any territory, and that the territory shall not have any jurisdiction over such country, and any act extending lines of a county into the Sioux country was void to that extent. McCrary, Elections, §§ 53, 54.

Upon the second ground, that, if chapter 122, Laws of 1881, are in force, we think there is nothing in this case upon which to declare this election void. Section 13 of chaper 27 of the Po

litical Code says that "all persons voted for by an elector at any general or special election shall be on one ballot." Section 14 of the same chapter declares what the qualifications of an elector shall be. Section 1 of chapter 122, Laws of 1881, says that all persons qualified and entitled to vote at the ensuing election shall be listed, and that in new election precincts they shall make a list from the best means at their command.

There can be but one construction to be placed on these sections as to who are qualified by law to vote at an election. The statute invariably uses the word "elector" when applying the term as to qualifications of a voter; hence an elector is, ecifically, a person legally qualified to vote in any county; and section 1 of the registry act says the list shall be made and contain the names of all persons qualified to vote at the ensuing election. If this be so, then the registry law is not a qualification. The qualifications of voters are explicit, exclusive, and unqualified by any exceptions, provisos, or conditions; and the organic law either directly or by implication confers no authority upon the legislature to change, add to, or abridge them in any respect.

If the persons entitled to vote have the qualifications before the opening of the board of registry, or become qualified after the second meeting of the board, then the registry in no way adds to or abridges the right to vote; and, if this be true, then the registry law at most can only be a regulation.

Section 47, c. 27, Pol. C., says that every male person above the age of 21 years, who is a citizen of the U. S., or has declared his intention to become such, and resided a certain time in the territory and his precinct, and shall have complied with all the provisions of any registry law, shall be entitled to vote, and all such persons shall be eligible to any office in said territory.

Supposing a person is voted for for an office, whose name is not on the register of voters, and who has not furnished an affidavit provided for by section 8 of the registry law; or suppose he comes in the prohibited class in subdivision 4 of section 1860

of the Revised Statutes,-this clearly distinguishes the difference between the law-making qualification of voters and the law regulating manner of holding elections. The registry law is clearly a regulation. The qualifications exist with or without a registry law. Section 8 of the registry law says: "Any person may be challenged, and the same oaths required as now or hereafter may be prescribed by law." What oath? The oath as to qualification of an elector.

Section 13 of chapter 27 of the Political Code says: "All persons voted for by an elector at any general election or special election shall be on one ballot." Section 6 of chapter 21 declares that the qualified voters are empowered to select the place of the county-seat by ballot at the first general election held in the county.

Section 2007 of the U. S. Statutes declares that "acting thereon shall be deemed and held as a performance in law." It is admitted by respondent that these voters were not challenged, nor any objection made to their voting, and the presumption must be that they were legal voters, and so known to the judges of election; and when the several persons offered the votes to the judges, and they were received and deposited in the ballot-box, they acted on that ballot, and it is deemed and held a performance in law. Section 2007, U. S. Statute; Dale v. Irwin, 78 Ill. 185.

Section 41 of chapter 27 says that no returns shall be refused by the canvassing board in making the estimate of votes for any informality in holding an election. The most that can be claimed for the registry law is that it is an informality. Sharon v. Wooldrick, 18 Minn. 351, (Gil. 325.)

Even should the court set aside the returns, because the judges had acted illegally, the election will stand, and the duty remains to declare what the true state of the vote is. McCrary, Elections, § 368; 16 Mich. 323.

There is no claim of fraud; no claim that any one was injured; and it is conceded that Buffalo Center received a majority of all the legal voters' votes in the county. Dobyns v.