Blair v. Ridgely

| Mo. | Mar 15, 1867

Wagner, Judge,

delivered the opinion of the court.

This case comes before us on a writ of error from the Circuit Court of St. Louis county. The plaintiff brought his action against the defendants, who were judges of an election held in the city of St. Louis on the 7th day of November, 1865, for rejecting his vote, and claimed damages in the sum of ten thousand dollars. In his petition he avers his qualifications as a voter, and states that he offered to take a certain oath which is therein set out, but which is not the oath required to be taken by voters by the Constitution of: this State, and there was no authority for receiving any such oath by the judges of election. It may therefore be considered, for the purposes of this case, as a refusal to take the' constitutional oath. The defendants demurred to the petition of the plaintiff because it did not state facts sufficient to constitute a cause of action in this, that it did not state that the plaintiff, when he offered to vote, took, or offered to take, the oath of loyalty required by the Constitution of the State of Missouri to be taken by all voters as a condition precedent to their exercise of the right of suffrage at any election held in this State. This demurrer was sustained by the court below.

The question raised for consideration is of the gravest importance, and involves a consideration of the constitutionality of the oath of loyalty, so far as the same is applicable to voters. It is contended that the third section of the second article of the Constitution of this State, which prescribes the oath, is a mfility, because it is a bill of attainder in the meaning of the Constitution of the United States, and because it is an ex post facto law in the meaning of the Constitution of the United States. Ex post facto laws and bills of attainder have been so much discussed of late, in connection with acts springing out of the troubles through which the country has just passed, that it is unnecessary to enter upon an argument concerning their nature and character. The real point to be determined is, whether the constitutional oath which is prescribed as a condition precedent to every man’s right to vote falls within the inhibitions of the Constitution of the United States forbidding the States to pass such laws.

The tenth section of the first article of the Constitution of the United States declares that no State shall “ pass any bill of attainder, ex post facto law, or law impairing the obligation of a contract.” The tenth amendment to the Constitution of the United States provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The States, when they entered the Union, retained all their original power and sovereignty, except such as were expressly surrendered to the General Government, or they were expressly prohibited from exercising. Subject to these exceptions, they are independent commonwealths, and the exclusive judges of what is just and proper for their own safety, welfare, and happiness. From the foundation of the government, the Supreme Court of the United States as well as the courts of the respective States have always abstained from declaring a law unconstitutional unless it was a case free from all doubt. The co-ordinate departments are all equal, each acts under the same solemn sanctions, and one will not assume the responsibility of annulling the work of the other except upon the clearest evidence that it has transcended its powers, or violated the organic law of the land. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a State Constitution to be in contravention of the Constitution of the United States, “the case must be so clear,” to use the language of a learned author, “that no reasonable doubt can be said to exist”—Sedg. on Stat. & Const. Law, 692. The judiciary will not be justified, nor indeed will it be authorized, to nullify and abrogate a law merely because it deems the law unwise, unjust, or impolitic —those being questions purely within the cognizance of the law maker, the remedy not being through the agency of the courts, but in the hands of the people by the exercise of their political power. Any other practice would tend to produce continual conflict and dissension between the different branches, where mutual respect and harmony should prevail, and ultimately paralyze the functions of government. But, notwithstanding these considerations, where any law, or any provision or clause of a State Constitution, clearly and unquestionably violates the Constitution of the United States, the courts can no more shrink from declaring it void and of no effect, than they can refuse to pass upon and determine any ordinary matter which comes within the admitted circle of their jurisdiction.

When the Federal Constitution was adopted, we derived our whole system of common law from the parent country, and the prohibition against ex post facto laws and bills of attainder was levelled against such laws as known and practised in England. In those cases in English history where bills of attainder have been passed, they have generally referred to the parties by name; for they are in the nature of judicial sentences, and directly affect those against whom they are aimed, wthout the formality'of a trial. We have seen no case (and it would seem to be an impossibility) where such laws have been passed, having universal application, and were laid down as rules comprehending the whole people of a State. In the act for banishing and disenabling the Earl of Clarendon, the law designated him by name, and proceeded to inflict upon him certain penalties without trial. So, too, in the cases of the Bishop of Rochester and John Plunket, and in the act disfranchising John Burnett and his associates from voting at election of members to serve in Parliament, and for the preventing bribery and corruption in the election of members to serve for the borough of New Shore-ham. The Earl of Kildare and his adherents were attainted without specifying their names, but-sentence was absolutely passed upon them, and execution followed whenever they were identified, without reference to any act on their part. But the section of the Constitution we are now considering has been before the Supreme Court of the United States in the Cummings case, and it was there held by a majority of the judges, reversing the decision of this court, that the provision was in the nature of pains and penalties so far as it related to the oath required to be taken by preachers, and was as to them consequently void. Five of the judges concurred in this opinion, and four dissented ; and Mr. Justice Miller, on behalf of the minority of the court, delivered an opinion which for ability, logic, and admirable juridical criticism, lias rarely been excelled even in that august tribunal. It is now claimed tliat that decision is decisive, and also concludes this case. Did we think so, we should unhesitatingly follow it, although our opinions and convictions remain unchanged ; for it is to the interest of the country that an end should be put to litigation and principles of law settled, and whenever the courts of last resort fairly decide a question coming within their jurisdiction, it is the duty of inferior courts to submit and to obey the paramount authority, though they may not be satisfied with the result. There was but one question presented to the court for adjudication in the Cummings case, and that was the constitutionality of the oath of loyalty so far as the same applied to preachers and ministers of the Gospel. It is true, Judge Field, who delivered the opinion of the majority of the court, arguendo, speaks of other pursuits, professions and trusts, for the following or holding of which the oath is exacted as a condition precedent, and condemns them all as liable to the same objection.

Now, in a case where the principle is identical with the one in the decision, we feel bound to follow it; but arguments or illustrations on different points, not necessary to the decision of the case, constitute no part of the judgment of the court, and can no more be deemed binding authority than the animadversion which the learned justice sees fit to pass upon the whole constitutional provision. It is not for us to determine whether the law is just or unjust, politic or impolitic —that is the appropriate function of another body. Nor is it within the sphere of our duties to go into an inquiry, or speculate as to the effect it may have on future political parties.. Mr. Justice Iredell, who-possessed an unclouded intellect and unbiassed judgment, after stating in Calder v. Bull, that a statute in violation of the Constitution is void, continues : “ If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to be void merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men ■ have differed on the subject; and all that the court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.” There is no fixed and certain standard of reference by which the expediency or justice of a measure can be ascertained, and in order to form a correct judgment it is necessary to have a knowledge and acquaintance with all the facts and circumstances which originated it or led to its adoption.

The decision of the Supreme Court of the United States in the Cummings case proceeds on the idea, that the right to pursue a calling or profession is a natural and inalienable right, and that a law precluding a person from practising his calling or profession on account of past conduct is inflicting a penalty, and therefore void. There are certain rights which inhere in and attach to the person, and of which he cannot be deprived except by forfeiture for crimes, whereof he must be first tried and convicted according to due process of law. These are termed natural or absolute rights. Blackstone says : “ By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; which would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society .or in it.” These rights may be arranged under the following heads: 1. The right of personal security; 2. The right of personal liberty ; and 3. The right to acquire and enjoy property. To these the distinguished commentator on American law has added a fourth head, which found no place under the English system, viz.: The free exercise and enjoyment of religious profession and worship.

When the sturdy barons wrested from a despotic king magna charla, they put into that great instrument, “No freeman shall be taken (arrested) or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed ; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or the law of the land. We will sell to no man, we will deny to no man, we will delay to no man, either justice or right.” The words “by the law of the land,” as used in the great charter, are understood to mean due process of law — that is, by indictment or presentment of good and lawful men. And Story remarks that the better and larger definition of “ due process” is, that it means law, in its regular course of administration, through courts of justice. Lord Coke, in commenting upon the above passage in magna charta, says that it enunciated no new principle, but was declaratory of the common law. The illustrious author of the Declaration of Independence embodies the same inestimable axioms, when he declares that “ all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” Essentially the same principles are inserted in the amendments to the Constitution of the United States, and in the bills of rights of the respective States. The right, then, to life, liberty, and private property, is natural, absolute, and vested, and belongs as well to the individual in a state unconnected with society, as in the most carefully guarded and well arranged system of government. He cannot be deprived of life but by due process of law; he can be restrained of his liberty only by the same means; and his right to acquire and enjoy property, reap the fruits and earnings of his own industry, should be fully guaranteed and protected. A man may be said to have a special property in his profession or calling, by which means he makes his support, and that he can be deprived of it only in the usual manner, according to the common forms of law. In a state.of nature, if he had .never entered into society he would undoubtedly have the right to select his avocation, whereon to depend for maintenance, and he cannot be said to have surrendered it by conaing into the social compact, only so far as may be necessary for the general good, in manner to be regulated by law.

But, is the right to vote, or to exercise the privilege of the elective franchise, a right either natural, absolute, or vested ? It is certain that in a state of nature disconnected with government, no person has or can enjoy it; whilst his right of breathing, free locomotion, and the acquisition and enjoyment of property, is perfect and complete. And here it is worthy of observation, that Judge Field, in the Cummings case, while enumerating several of the classes to which the oath extends, all of which he considers renders it obnoxious to the constitutional inhibition, carefully and guardedly refrains from including the right to vote in the category.

That the privilege of participating in the elective franchise in this free and enlightened country is an important and interesting one, is most true; but we are not aware that it has ever been held or adjudged to be a vested interest in any individual. Judge Washington, in Corfield v. Coryell, 4 Wash. C. C. 371" court="None" date_filed="1823-04-15" href="https://app.midpage.ai/document/corfield-v-coryell-9301445?utm_source=webapp" opinion_id="9301445">4 Wash. C. C. 371, speaks of it as one of the fundamental franchises under our form of government, to be regulated and established by the laws or constitution of the State in which it is to be exercised. The leading case on the subject is Ashby v. White, 2 Ld. Raym. 938 (S. C.); 1 Sm. L. C. 342, where the plaintiff averred that he was a “burgess” and an inhabitant of the borough of Aylesbury when the election was held; that being such burgess and inhabitant he had the right to vote; and that the defendants, who were constables of said borough, and officiating as judges of the election, were then and there requested to receive and allow his vote, but that they absolutely refused to receive and allow the same, whereupon he brought his suit and claimed damages in the sum of ¿£200. Upon a plea of not guilty, there was a verdict for the plaintiff, which was afterwards arrested in the King’s Bench.

Powell, Powys and Gould, justices, held that the action could not be maintained; but Holt, C. J., dissented, and gave an opinion for the plaintiff. An appeal was prosecuted to the House of Lords, where the judgment of the King’s Bench was reversed, and the views of Holt adopted and sustained. But the Chief Justice did not proceed upon the idea of a natural and inherent right in the citizen to vote, for he expressly says that before the statute of 8 Hen. VI., ch. 7, any man that had a freehold, though never so small, had a right of voting; but by that statute the right of election was confined to such persons as had lands or tenements to the yearly value of forty shillings, because, as the statute said of the tumults and disorders which happened at elections by the excessive and outrageous number of electors. But he states that the right of election in that case was a direct grant, incident to and inseparable from the freehold. It was the case of a burgess, and the plaintiff claimed the right to vote by reason of his burgesship, and Littleton in his chapter of tenure in burgage, 162, c. 1. 180 b. 109, was quoted", where he says: “Tenure in burgage is, where an ancient borough is, of which the King is lord, of whom the tenants hold by certain rent, and it is but a tenure in socage.” And also, sec. 164, where he says: “And it is, to-wit, that the ancient towns called boroughs be the most ancient towns that be within England, and are called boroughs because of them come the burgesses to Parliament.” So that the tenure of burgage was from the antiquity, and their tenure in socage was the reason of their estate, and the right of election was annexed to their estate. There is no such annexation or grant of franchise as to elections in this country.

It will now be necessary to inquire by what charter or authority, and upon what terms, the citizen is invested with the ballot in this State. As before remarked,. outside of society and disconnected with government, no person either has or can exercise the elective franchise as a natural right, and he only receives it upon entering the social compact, subject to such qualifications as may be prescribed. Prior to the adoption of the Federal Constitution, the respective States possessed unlimited and unrestricted sovereignty, and retained the same ever afterwards, except so far as they granted certain powers to the General Government, or prohibited themselves from doing certain acts. Every State reserved to itself the exclusive right of regulating its own internal government and police. Previous to the year 1820, Missouri was a mere Territory, not a State clothed with the power of self-government; but in pursuance of the authority of the act of Congress of March 6, passed in that year, the inhabitants of the Territory of Missouri elected delegates to a Convention to form a Constitution for the State. The only limitation imposed by Congress was, that the Constitution, when formed, should “ be republican, and not inconsistent with the Constitution of the United States.” Subject to these conditions, there was no limitation or restraint upon their action as to the organism and principles of the State they were about to form. The people, through their representatives assembled in Convention, proceeded to form the Constitution which was to organize them into a State, and in the “Declaration of Rights,” embodied in that Constitution as general, great and essential principles of liberty and free government, we find the following: 1. “ That all political power is vested in, and. derived from, the people.” 2. “ That the people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering and abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness. ” With these provisions in her Constitution, Missouri was admitted in the Union, and recognized as one of the sisters in the republic, on the same terms, and with the same powers, as the original States. Her admission was a direct and positive declaration that her Constitution was republican in form, and not inconsistent with the Constitution of the United States. There was, then, a complete reservation by the people to exclusively regulate and control the internal government and police of the State,- and to alter, amend, or abolish their Constitution whenever they might deem it necessary for their safety and happiness. Now, what is meant by the “ people,” as used in this connection ? Ordinarily, it may be true, that when we speak of the people, the entire body of the inhabitants of the State is comprehended. But this cannot be so in a political sense. It can only mean that portion of the inhabitants who are entrusted with political power. Neither in this, nor in any of the American States, did the inhabitants, other than qualified voters, ever exercise political power, and it is only through the instrumentality of ballots that such power is or can be exercised. This truth is exhibited by the fact that, whilst the Constitution declared that all power resided in the people, less than one-fourth of all the inhabitants exclusively exercised the political power, and more than three-fourths were always disfranchised.

The people,' for political purposes, must be considered synonymous with qualified voters, and their very first act in the formation of a State Government was to exclude from the right of suffrage more than three-fourths of the whole inhabitants. The exclusion of women, children and negroes is purely arbitrary, and fixed and regulated by law. If the power to regulate the internal government and police of the State resided in the people, and was their “inherent, sole, and exclusive right,” the conclusion is inevitable that it was their peculiar and exclusive province to say and determine what should constitute any inhabitant of the State a'qualified voter. The power must reside somewhere, and it can only be with the people, and they have always exercised it, both negatively and affirmatively.

It is not perceived that there is any restraint over the power on this subject. Certainly not in the Constitution of the United States, for there is not to be found in that instrument a single sentence, paragraph, or word, which gives the National Government power over the qualifications of voters in any'of the^ States. But the direct opposite is affirmed in that clause cited in the former part of this opinion, which declares “that the powers not delegated to the United States by the Constitution, nor prohibited, by it to the States, are reserved to the States respectively, or to the people.”

When the people, in 1865, formed and adopted a new Constitution as their organic law, they exercised an unquestioned power — an undisputed right. They altered and abolished their Constitution, and formed a new one, in which, in pursuance of their exclusive right in regulating their internal government, they prescribed certain qualifications and conditions for the exercise of the elective franchise.

Of their perfect and exclusive right to do this, we do not entertain the slightest doubt. The right to vote is not vested —it is purely conventional, and may be enlarged or restricted, granted or withheld, at pleasure, and' with or without fault. If a person loans another certain property gratuitously, and the possession is resumed on account of abuse or ill treatment, is the taking it from the borrower a penalty or punishment within the meaning of the Constitution of the United States ?

But it is said that the oath of loyalty cannot be regarded as a qualification, because it is not attainable by all. Judge Field expresses this idea in the Cummings case, but it is sufficient answer to say that the remark was not made on a question like the one now under consideration. The illustrations put by Judge Miller in the same case are exceedingly apposite, and seem to be incontrovertible. He says: “The Constitution of the United States provides as a qualification for the office of President and Yice President, that the person elected must be a native born citizen. Is this a punishment to all those naturalized citizens who can never attain that qualification ? The Constitutions of nearly all the States require, as a qualification for voting, that the voter should be a white male citizen. Is this a punishment for all the blacks who can never become white ? It was a qualification required by some of the State Constitutions for the office of judge, that the person should not be over sixty years of age. To a very large number of the ablest lawyers in any State this is a qualification they can never attain, for every year removes them further away from the designated age. Is it a punishment ? The distinguished ‘commentator on American law, and Chancellor of the State of New York, was deprived of that office by this provision of the Constitutictn of that State. He was, just in the midst of his usefulness, not only turned out of office, but he was forever disqualified from holding it again by a law passed after he had accepted the office.”

It is well known that in the early history of this Government, several of the States admitted free negroes to vote on an equality with whites, and subsequently they divested them of that right, denied them that privilege, and confined the elective franchise solely to whites. They were disfranchised because they were black, and a white qualification was imposed, which it was physically impossible for them to attain. The privilege was withdrawn from them; they were disfranchised because they were black. We apprehend that it will not be contended that depriving them of the right of suffrage was a punishment, or in the nature of pains and penalties. The law-makers, we presume, owing to peculiar circumstances, thought they were not discreet persons to be entrusted with the ballot, just as the framers of our Constitution, we suppose, considered that those who had betrayed our flag, and exhibited their hostility to the Government, were, for the time being, unsafe and unfit repositories of political power.

The principle of the provision in the Constitution is involved in the power, and flows from the duty of the State to protect itself, that is, the welfare of the people. It proceeds upon the distinction between laws passed to punish for offences, in order to prevent their repetition, and laws passed to protect the public franchises and privileges from abuse by falling into unworthy and improper hands. The State may not pass laws in the form or with the effect of bills of attainder, ex post facto laws, or laws impairing the obligation of contracts; it may and has full power to pass laws, restrictive and exclusive, for the preservation or promotion of the common interests, as political and social emergencies may from time to time require, though in certain cases disabilities may directly flow as a consequence. It should never be forgotten that the State is organized for the public weal, as well as individual purposes; and while it may not disregard and violate the safeguards that are thrown around the citizen for his protection by the Constitution, it cannot neglect to perform and do what is demanded for the public good.

It has grown into an axiom of the law, that public grants are to be construed strictly; and in the absence of any power expressly conceded to the United States, or where its exercise is not directly denied by the Federal Constitution, the State is not to be presumed, in any grant, to part with any of the power inherent in it for the protection and promotion of the common welfare. The power in the State to preserve the general good, and promote the public welfare, is inherent and supreme; and deny and destroy this cardinal maxim, and the very foundation of our system is sapped, and the State is shorn of all power for self-protection.

Believing that the provision in the State Constitution prescribing an oath for voters is not in opposition to the Constitution of the United States, we affirm the judgment.

Judge Fagg concurs.

Holmes, Judge. The ground of the demurrer was that the petition did not state facts sufficient to constitute a cause of action—R. C. 1855, p. 1231, §§ 6, 7, 10.

The petition stated that on the 7th day of November, 1865, “ and long prior thereto,” the plaintiff was “ a native born free white male citizen of the United States, and of the State of Missouri, residing in the city and county of St. Louis, and over the age of twenty-one years.” The statements of the petitioner concerning his services in the armies of the United States (which were, doubtless, highly meritorious,) I regard as surplusage in the pleading. It is further stated that there was an election held on that day for a county auditor and a judge of the County Court in the Sixth judicial district, and that the defendants were the legally appointed judges of election “for the eastern election precinct of the sixth ward of the city of St. Louis, within the said county of St. Louis, in which ward the plaintiff had resided continuously for several years, and was then residing.” It is then stated that the plaintiff offered his ballot together with “an affidavit, being an oath of allegiance,” (which he set forth in the petition,) and requested the judges to receive his vote, and that the same was wilfully rejected.

There is no distinct averment in the petition that the plaintiff had resided in this State one year next preceding the election, nor that during the last sixty days of that period he had resided in the county, city, or election district, where he offered to vote. It is averred that on that day, and long prior thereto, he was a citizen of the State, residing in the city and county of St. Louis, but it is not said how long prior thereto. It is also averred that the defendants were judges of the election for the eastern election precinct of the sixth ward of the city, in which ward he had resided continuously for several years, and was then residing; but it is not stated that any one of those several years was the year next preceding the election, nor that during the last sixty days of that year he had resided in the county, city or district in which he had offered to vote. All that is averred here may be true, and yet it may be also true that the continuous residence for several years (of which the petitioner speaks) may have been at some indefinite period prior to the commencment of his military services, and that his then present residence in the ward may have commenced within the sixty days next preceding the election.

A qualified voter does not lose his residence by reason of his being absent from his place of residence, while serving in the volunteer army of the United States—Const. of Mo., Art. II., § 21.

Rut there is still no averment that the plaintiff had been a resident of this State, or had a place of residence in this State, for one year next preceding the election, or within the county, city, or district, for the last sixty days of that year. For all that is stated in the petition he may have become a non-resident, though he may have been at some pri- or time a resident, and he may actually have been a nonresident within the time specified. In the case of Pryce v. Belcher, 8 Com. B. 58, the plaintiff was a registered voter of the borough of Abingdon, but it was said that if in consequence of his having become a non-resident he had lost his right to vote there under the existing laws, he could not maintain an action against the judges of election for refusing to receive his vote—1 Smith’s Lead. Cas. 309 (131); 3 Man. G. & S. 77 (S. C.)

The cause of action is founded upon the legal right to vote. The action is maintainable where that right has been wilfully, maliciously or wrongfully denied by the judges of election, and for the reason that where there is a right there is a remedy. "When the British Parliament by the statute of 8 Hen. VI., ch. 7, disfranchised all freeholders under forty shillings yearly value, because their voting had led to tumults and disorders at elections (there being no higher constitutional" aixthority to forbid it), the legal right was gone, and they could no longer maintain an action for a refusal to receive their votes—Ashby v. White, 2 Ld. Raym. 938. All the facts that are necessary to constitute the right under the law, and show that it exists as a legal right, must be stated in the petition. The plaintiff cannot be allowed to judge of the facts both for himself and for the court, nor to state his own conclusions of law as the foundation of his rights ; and unless the facts stated in the petition are sufficient to show that the plaintiff was by law entitled to vote, and had a subsisting legal right to vote, the rejection of his ballot by the judges of election cannot amount to anything which the court can consider to be an infrigement of his right. If there be no right there is no injury, or it is merely damnum absque injuria—Curry v. Cabliss, 37 Mo. 330" court="Mo." date_filed="1866-02-15" href="https://app.midpage.ai/document/curry-v-cabliss-8001831?utm_source=webapp" opinion_id="8001831">37 Mo. 330; Blanchard v. Stearns, 5 Metc. 298; Ashby v. White, 2 Ld. Raym. 938; 1 Smith Lea. Cas. 290-308. It has been held that a man may be disfranchised for an indictable offence without his being convicted of it—4 Com. Dig. (tit. Franchises, F. 20) p. 270.

The statute provides that “ when any person offers to vote with whose qualifications neither of the judges is personally acquainted, either of the judges may administer an oath and examine him touching his qualifications as a voter ”—R. C. 1855, p. 703, § 41. It is not stated in this petition that either of the judges was personally acquainted with the plaintiff’s qualifications as a voter, nor that he offered to be examined under oath touching his qualifications. It is averred in effect that he presented an affidavit, called an oath of allegiance, and demanded that his vote should be received.

It is averred also, that the defendants, “well knowing that the plaintiff was a lawful voter at said election, and entitled to deposit his ballot,” refused to receive his vote. This is a conclusion of law, which the facts stated do not warrant—Curry v. Cabliss, 37 Mo. 330.

Where a plaintiff is asking judgment for ten thousand dollars damages against the judges of election for wilfully and wrongfully rejecting his vote, the court may properly consider, with some technical precision, whether the facts which alone can constitute a lawful ground for such demand, have been stated with sufficient fullness and certainty in his petition to authorize the rendering of such judgment.

Now, the eighteenth section of the second article of the Constitution of this State, defining the qualifications of voters, required that the plaintiff should not only be a white male citizen of the United States over the age of twenty-one years, but that he should have “resided in this State one year next preceding the election,” and that, “during the last sixty days of that period” he should have “resided in the county, city or town” where he offered to vote, as well as that he should not vote “elsewhere than in the election district of which he was at the time a resident,” before he could have a legal right to vote in this State, or at this election—Const. of Mo., Art. II., § 18. These were necessary qualifications of all voters, without which neither he nor any other person could be legally entitled to vote. In my opinion, the facts stated in the petition, if true, do not show that the plaintiff had a right to vote at this election; and for this reason I think the demurrer was rightfully sustained, and concur in affirming the judgment.

If this disqualification referred to in this eighteenth section were held to be void as being a bill of pains and penalties within the prohibition of the Federal Constitution, the qualifications therein required would (as I conceive) still remain unaffected by the decision. The ,question whether or not the plaintiff’s vote could lawfully have been l’efused merely because the oath of allegiance, which he offered to take, omitted the first clause of the prescribed oath of loyalty, is one which I have deemed it unnecessary for me to consider at large herein, and I give no opinion on that point. The decision of the court places the case in a condition that will enable the plaintiff, if he chooses, to bring the subject before the higher tribunal, to which it more peculiarly belongs to put a final construction upon the Constitution of the United States, and to decide upon questions of conflict between that instrument and the Constitution of a State.