171 Pa. 505 | Pa. | 1895
Lead Opinion
Opinion bv
The act of June 24, 1895, P. L. 212, provided for the creation of the Superior Court, a court intermediate between the Supreme Court and the courts of common pleas,'to be composed of seven judges, to be appointed by the governor, to hold their offices under this appointment until the first Monday of January following: In the meantime, at the general election in November, their successors were to be elected to hold office for the term of ten years from said first Monday of January.
In the first section of the act it is provided that: “ No elector may vote, either then, or at any subsequent election, for more than six candidates upon one ballot for the said office. ” The commonwealth alleging this provision of the act to be unconstitutional and void, in that it restricted the right of the voter to cast his ballot for six judges, when seven were to be elected, requested the secretary of the commonwealth, the defendant, to prepare the official ballot under act of June 10, 1893, as indicating seven candidates for the office instead of six as provided in the act. This the secretary refused to do, being of opinion, it was his duty to follow the statute; the plaintiff then applied to the court below for a mandamus to the secretary; on hearing of the application and after argu
There are seven candidates to be voted for; the legislature has declared no voter shall vote for more than six; in so declaring has it deprived the voter of a constitutional right? If so, then this provision of the act is void, otherwise not.
A constitutional convention and the legislature are equally representatives of the will of the people. A written constitution marks only the degree of restraint which, to promote stable government, the people put upon themselves; they resolve in this instrument in substance: We will not do certain things and we will do certain others; and generally in the same instrument any change in the course of government thus marked out is rendered difficult by the formalities and lapse of time which must attend an amendment of it; therefore, changes are infrequent and a reasonable degree of stability is attained. But whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation ; then come the specific restraints imposed by our own constitution upon our own legislature; these must be respected; but in that wide domain not included in either of these boundaries the right of the people through the legislature to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expressions of their will in the statute; then examine the constitution and
Section 1, art. 8, declares: “ Every male citizen, twenty-one years of age .... shall be entitled to vote at all elections; ” then follow the other qualifications, such as residence and payment of tax. The provision on this same subject in the constitution of 1838, sec. 1, art. 3, reads thus: “In elections by the citizens every white freeman of the age of twenty-one years .... shall enjoy the right of an elector.” Except that the word “ white ”'is injected, this is almost verbatim the provision on the same subject in the constitution of 1790.
The qualification of the voter in each constitution is specified; his age, sex, residence and payment of taxes. Although a distinction between the words used in the constitution of 1874 and those used in the two older constitutions is sought to be drawn, we can see none between “ be entitled to vote- at all elections,” and “ shall enjoy the rights of an elector.” Both mean the same thing; he shall not be entitled to vote if he possesses not the enumerated qualifications and every of them ; if he do possess them all then he is an elector, and entitled to vote as the law may prescribe. Being an elector, and therefore entitled to vote at all elections, the constitution of 1874,
Section 1 of art. 5 provides that: “ The judicial power of this commonwealth shall be vested in a Supreme Court, in courts of common pleas, courts of oyer and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates courts, and in such other courts as the general assembly may from time to time establish.”
Under the authority of this last specification, “ such other courts as the general assembly may from time to time establish,” the Superior Court was created. Nothing is said in the article as to how judges of such courts when established shall be elected. Section 15 of the same article clearly applies to the election of district judges of the common pleas, for they are to be elected by the qualified electors of the respective districts over which they are to preside, while the jurisdiction of the Superior Court judges is limited by no district boundaries. The manner of electing Supreme Court judges is also prescribed in the constitution; but being silent in the judiciary article as to the method of electing the members of the Superior Court, we turn to sec. 1, art. 12, which declares: “All officers whose selection is not provided for in this constitution shall be elected or appointed, as may be directed by law.” And so, in pursuance of the authority to create other courts in sec. 1 of art. 5, the court is established, and by the authority of sec. 1, art. 12, the method of election is prescribed.
The constitutionality of the court is not denied by appellee, nor is the right of the legislature to provide for the election of its judges deuied; the constitutionality of the method of election alone is in question. As the language of the constitution of 1838, prescribing the qualifications of voters, possesses the same significance as that of 1874, the words “shall enjoy the right of an elector,” and “ shall be entitled to vote at all elections,” meaning the same thing, do they as urged by appellee mean more than they express? Can they, by any reasonable
No sound reason has been urged in the argument why we should enlarge the scope of the words “ shall be entitled to vote at all elections ” by practically adding “ also for every candidate of a group of candidates for the same office.” The constitution does not so say and has never been interpreted to so' mean. Within one year after the adoption of the constitution of 1838, the act of July 2, 1839, became a law. It provided: “Section 4. Each of such qualified citizens shall vote for one person as judge, and also for one person as inspector of elections, and the person having the greatest number of votes for judge shall be publicly declared to be elected judge, and the two persons having the greatest number of votes for inspector, shall in like manner be declared to be elected inspectors of election.”
Here was a restriction immediately after the adoption of the constitution; two inspectors are to be elected, yet the qualified voter, who “ shall enjoy the right of an elector ” is limited to a vote for one. This is more than a mere legislative construction ; it is a cotemporaneous interpretation of language by those who lived when the constitution was framed, possibly by some of those who took part in the convention, and certainly by those who had voted at the election at which it was adopted. This interpretation was never questioned. A period of twenty-eight years elapsed when the jury commissioner act of 1867 was passed, providing for the election every three years of two jury commissioners, and limiting the qualified voter to a right to vote for but one. For seven years every verdict in civil and criminal cases in the commonwealth rested on the
The convention which framed the constitution of 1874 was composed of eminent men, some of them the ablest lawyers in the state ; the construction put upon the constitution of 1838 was well known to them; the method of their own election they knew; can it be presumed for a moment they would have accepted an election to a high office if they had thought it was brought about by unlawful, because unconstitutional, methods ? It thus clearly appears, that the interpretation put upon the language of the constitution by those who lived at the time it was framed and adopted, was the same as that put upon like language in that of 1874 by the legislature of 1895 ; that flu: interpretation put upon the constitution of 1838 was acquiesced in by the bar, the courts and the legislature for a period of thirty-five years until the adoption of the constitution of 1874. That in two other instances, offices of the highest importance, jury commissioners and delegates to a constitutional convention were by legislative enactment filled on the limited voting plan. In view of this long continued interpretation of our own constitution, we do not think it necessary to discuss the authorities cited from other states. In fact in the case most relied on by the appellee, State against Constantine, 42 Ohio, 437, in which the court arrives at a conclusion different from ours, it is said: “ The right of each elector to vote for a candidate for each office to be filled at an election had never been doubted; ” in our state the right of the legislature to limit the vote to a less number than all the officers to be elected has never been
But, it is argued from the provisions of the constitution establishing limited voting as to certain offices, the maxim expressio unius exclusio est alterius must move the court to the construction contended for by appellee. The application of this maxim depends wholly on the subject of contention'; the expression of one thing often necessarily is, or tends to, the exclusion of others not expressed; but the induction is not warranted in all cases, and if indiscriminately applied would frequently lead to most erroneous conclusions. Take the cáse before us: the constitution establishes limited voting in the election of Supreme Court judges, county commissioners, Philadelphia magistrates, and inspectors of election; therefore, it is argued, the implication is that the plan is excluded in the election of all other officers. But the limited voting plan was.recognized and adopted in the constitution because it was deemed wise that as to offices non partisan in character, or which at least should be, the minority party ought to have representation, and this could only be attained by limited voting. Does the expression of this thing necessarily exclude other things not expressed ? As the same reasons for the plan exist as to like offices thereafter created, is it not a necessary deduction that a like plan to that expressed should be followed? Does not the whole spirit of the constitution plainly so imply, while there is not a word indicating that such plan as to other or new courts is forbidden. In the cases specified the constitution is mandatory; it saj-s to the legislature in these, enumerating them, thou shalt prescribe the limited voting plan ; in the cases not enumerated but of the same kind it is discretionary.
For the. reasons herein stated, as well as for those assigned in the opinion of Judge McPherson, the decree of the court below is reversed and the petition of the attorney general for a mandamus is dismissed at the costs of appellee.
Dissenting Opinion
I cannot concur in this judgment. Some of the reasons that impel mo to dissent from it I will state as briefly as I am able. The government of Pennsylvania is in the language of the Declaration of Rights a “ Free Government,” and rests on the authority of the people. Their authority is exercised and their will expressed by their votes. To protect themselves in the unrestricted exercise of their right to vote at all elections and for all public officers they have declared hi the fifth section-of the Declaration of Rights that “ no power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.” In order to define what they meant by “ the right of suffrage ” and to regulate the manner of its exercise, they devoted the seventeen sections of the eighth article of the constitution to this subject. In the first of these sections they declare that “ every male citizen twenty-one years of age, possessing the following qualifications shall be entitled to vote at all elections.” The qualifications that follow relate to citizenship, to residence, and the payment of a tax. These qualifications cannot be changed, increased or diminished by the legislature. This was distinctly asserted by this court in Page et al. v. Allen et al., 58 Pa. 338, in these words : “ No constitutional qualification of a voter can be abridged, added to, or altered by legislation.” In McCafferty v. Guyer, 59 Pa. 109, a statute passed to disfranchise a deserter from the armies of the Union was held unconstitutional because it added a disqualification not found in the constitution; and the rule of Page v. Allen, supra, was recognized and restated in these words: “ A right conferred by the constitution is beyond the reach of legislative interference.” If there were no other provisions upon this subject it would be too clear for serious contention that the people had reserved to themselves the unrestricted right of suffrage, and that the legislature was powerless to deny to any qualified voter the privilege of voting at all elections and for all elective officers, if he desired to exercise it. But some experiments had been made by the legislature with what is called limited voting prior to the calling of the constitutional convention of 1873. These had been made without constitutional authority, to secure minority representation on boards of officers where it was thought the presence of a representative of the minority politi
These are the only exceptions to the unlimited right to vote at all elections and for all elective officers that the framers of the constitution saw fit, when their attention was fixed upon the subject, to allow. Expressio unius exclusio alterius. It has been suggested that this maxim is not applicable in the interpretation of the constitution, but this court held exactly the opposite in Page v. Allen and Robb v. Barlow, 58 Pa. 338, and the following language was used: “ The expression of one thing in the constitution is the exclusion of things not expressed.” It was further said in the same case “ The inhibitions of the constitution as to legislation are to be regarded as well when ■ they arise by implication as by expression.” We are bound by our own precedents and by every rule of interpretation to say in this case that an enumeration of the instances in which the exercise of the right of suffrage shall be limited is equivalent to a distinct denial of the power to limit it in all cases not in the enumeration. But this judgment is not only in violation of the constitution, but it recognizes a power in the legislature to disregard the constitutional safeguards of the right to vote that is far reaching and that might be used, to subvert the will of the majority. In many counties of the state two or more, and in the counties of Philadelphia and Allegheny many members of the legislature are elected upon the same general ticket. The right of the voter might with equal propriety be limited to a certain number of these. If the legislature may deny to the voter the right to vote for one, why not for two, or three, or to vote for all but one ? There are counties in the commonwealth where the relative strength of the great political parties is as one to three. Suppose such a
But it is said that jury commissioners are elected on the plan of limited voting, and if this judgment should be affirmed the law under which they are elected would fall. I can imagine a greater public calamity than that would be. Suppose it should be held, as but for this judgment I cannot doubt it would be held, that the law under which jury commissioners are elected is unconstitutional, then the duty of selecting and drawing jurors would fall back upon the county commissioners if no other method was provided by law. No serious inconvenience could arise. But meantime, and until the question is regularly raised on quo warranto and decided, it could not be raised on a challenge to the array. The officers will continue to serve until the law is repealed or held to be invalid. But suppose it was inevitable that an affirmance of this judgment would empty every jury wheel in the state. It is better, a thousand times better, that this should happen than that the sacred “ right of suffrage ” so carefully intrenched by the people in their fundamental law should become the football of party majorities to be limited or restricted as the exigencies of political warfare might seem to require. I would affirm this judgment and uphold the constitutional declaration that “every male citizen twenty-one years of age .... shall be entitled to vote at all elections ” and, in the language of the Declaration of Rights, I would hold that “ no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage ” at any election or for any elective officer, except in the instances and to the extent that the constitution has plainly authorized.
