136 Pa. 459 | Lackawanna Cty. Ct. Qtr. Sess. | 1890
Opinion,
This case involves a number of interesting questions affecting the right of the citizen to vote at elections, the manner in which such right must be exercised, and the constitutionality of several provisions of the act of January 30,1874, P. L. 31, entitled “ A further supplement to the act regulating elections in this commonwealth.”
The rights of the voter are clearly defined by § 1, article VIII. of the constitution, as follows:
“ Every male citizen, twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections :
“ First. He shall have been a citizen of the United States at least one month.
“ Second. He shall have resided in the state one year, (or if, having previously been a qualified elector or native-born citizen of the state, he shall have removed therefrom and returned, then ■six months,) immediately preceding the election.
•“'Third. He shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election.
“Fourth. If twenty-two years of age, or upwards, he shall have paid within two years a state or county tax, which shall have been assessed at least two months, and paid at least one month, before the election.”
The constitution having thus fixed the qualifications of voters, it is not in the power of the legislature to either enlarge or abridge them.
While the constitution has thus defined the rights of voters, it is silent in many respects as to how those rights shall be exercised. It prescribes very clearly the qualifications which a voter must possess, but it provides no machinery by which to ascertain whether a particular voter possesses such qualifications. All this has been wisely left to the legislature. It would be out of place in the fundamental law.
The legislature has from time to time passed various laws to regulate elections. Their object has always been to preserve the purity of the ballot. It is too late to question the constitutionality of such legislation, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself. Speaking of the registry act of 1869, it was said by Mr. Justice Adnew, in Patterson v. Barlow, 60 Pa. 54:
“We come now to the important question whether the act of 17th of April last, called the registry law, is constitutional. It is admitted that the constitution cannot execute itself, and that the power to regulate elections is a legislative one which has always been exercised by the general assembly since the foundation of the government. The constitution appoints the time of the general election, prescribes the qualifications of voters and enjoins the ballot, and for all the rest the law must provide. The precincts and places, the boards of election, the lists of electors, whether called a list of taxables or a registry of voters, and the evidence of persons and qualifications, must all be prescribed by law. This undoubted legislative power is left by the constitution to a discretion unfettered by rule or proviso, save the single injunction ‘ that elections shall be free and equal.’ But to whom are the elections free ? They are
I do not understand the foregoing to be disputed, but the appellant contends that the act of 1874, particularly the tenth section thereof, prescribes certain regulations, which, if they do not deny the right to vote, at least clog its exercise with such conditions as to render it unreasonably inconvenient. At the risk of being tedious, I give the said section in full:
“ On the day of election any person whose name shall not appear on the registry of voters, and who claims the right to vote at said election, shall produce at least one qualified voter of the district as a witness to the residence of the claimant in the district in which he claims to be a voter, for the period of at least two months immediately preceding said election, which witness shall be sworn or affirmed and subscribe a written or partly written and partly printed affidavit to the facts stated by him, which affidavit shall define clearly where the residence is of the person so claiming to be a voter; and the person so claiming the right to vote shall also take and subscribe a written or partly written and partly printed affidavit, stating, to the best of his knowledge and belief, when and where he was born; that he has been a citizen of the United States for one month, and of the commonwealth of Pennsylvania; that he has resided in the commonwealth one year, or, if formerly a qualified elector or a native-born citizen thereof, and has removed therefrom and returned, that he has resided therein six months next preceding said election; that he has resided in the district in which he claims to be a voter for the period of at least two months immediately preceding said election ; that he has not moved into the district for the purpose of voting therein; that he has, if twenty-two years of age or upwards, paid a state or county tax within two years, which was assessed at least two
The preliminary question at once suggests itself, are these provisions mandatory, or merely directory ? If the latter, the registry law is little better than a rope of sand, so far as the
It would be difficult to find language more positive or prohibitory than the act of 1874. It is negative in form. The third section declares: “No man shall be permitted to vote at the election on that day whose name is not on said list, unless he shall make proof of his right to vote as is hereinafter required.” Moreover, it is highly penal in its character. The twelfth section provides that “ if any election officer shall refuse or neglect to require such proof of the right of suffrage as is prescribed by this law, or the laws to which this is a supplement, from any person offering to vote whose name is not on the list of assessed voters, or whose right to vote is challenged by any qualified voter present, and shall admit such person to vote without requiring such proof, every person so offending shall, upon conviction, be guilty of a misdemeanor, and shall be sentenced for every such offence to pay a fine not
Before I proceed to discuss the details of the act, as developed by the respective assignments of error, these general rules for its construction may be stated with entire confidence:
(a) The primary object of the act is to prevent fraudulent voting. Hence, it must be so construed as to best carry out the intent of the legislature, and not to defeat it.
(V) The affidavit of the non-registered voter must be sufficiently specific as to show upon its face, without reference to any other fact or circumstance, that the Voter has the right which he claims ; and
(e) It must also be sufficiently specific to found thereon an indictment for perjury, in case any of the material allegations therein are wilfully false.
It is also proper to observe that the only objection that can be urged against the provisions of the act of 1874 is the argumentum ab ineonvenienti, there being nothing which necessarily prevents a non-registered voter, who is otherwise qualified, from casting his ballot.
The first assignment of error raises the most important as well as comprehensive question in the cause. It is there alleged that the court below erred in “ declining to allow the respondent’s motion to strike .from the examiner’s report of illegal voters the names of all unregistered voters possessing certain qualifications, to wit, having filed affidavits covering
First, that the voter was twenty-one years of age;
Second, that the voter had been a citizen of the United States at least one month, and had resided in the state of Pennsylvania one year immediately preceding November 6, 1888;
Third, that the voter had resided in the election district in which he voted for two months immediately preceding November 6,1888;
Fourth, that the voter had paid a state or county tax within two years, which tax was assessed at least two months before November 6, 1888;
Fifth, that the said voter had not moved into the said district for the purpose of voting therein.
Connected with this affidavit was the affidavit of a witness, the particulars of which we need not specify, except as is hereinafter stated.
It needs but a glance at the above affidavit of the voter to see that it is a general affidavit embodying the language of the constitution, but omitting many of the specific matters required by the act of 1874. If it had been drawn for the purpose of enabling unqualified persons to vote, and to avoid the penalties prescribed by statute for illegal voting, it could not have been framed more adroitly. The act of 1874 substitutes for this loose kind of affidavit one of a more searching character. As before observed, it was intended to prevent fraud; and to this end, it probes the conscience of the voter by requiring him to state such specific facts as to enable the truth of his affidavit to be tested, and the proper punishment imposed upon him if it is false.
The affidavit in question fails to comply with the act of 1874 in the following particulars, inter alia:
(a) It does not state when and where the voter was born.
(b) It does not state when and where the tax claimed to be paid by the affiant was assessed, and where and to whom paid.
The affidavit of the witness does not comply with the statute in this, that it merely avers generally that the voter “ has resided in the above-named election district for at least two months immediately preceding the sixth of November, 1888,” instead of stating, as required by the act, “ whei’e the residence
It was urged on behalf of the appellant that at least some of these requirements are in excess of the legislative authority; that thejr are so stringent as in many instances to deprive the citizen of the right to vote, in disregard of the mandate of the constitution which declares that “ no elector shall be deprived of the privilege of voting by reason of his name not being registered : ” § 7, article VIII. By the word “ elector ” in this clause, is meant a duly qualified elector. When an elector has established his qualifications, in the manner pointed out by law, his vote must be received in obedience to the mandate of the constitution. Until, however, an unregistered voter has thus complied with the law, he is not even prima facie a qualified elector. We are unable to see anything in these requirements of the act of 1874, which, properly construed, are unreasonable, or in conflict with the constitution. It certainly imposes no hardship upon the voter to require him to swear, “ to the best of his knowledge and belief, when and where he was born.” There are few persons of sufficient intelligence to cast a ballot who have not some knowledge and belief of the time and place of their birth, and those who have neither knowledge nor belief can say so; the law does not require impossible things.
This brings us to the more serious objection that the affidavit does not state where and when the tax claimed to he paid by the affiant was assessed, and where and to whom paid. The force of the- argument upon the act of 1874 was concentrated upon this one point. It was urged that it would often be impracticable, if not impossible, to give this information with precise accuracy, and that it is hard to be confronted with the loss of his vote on the one hand, and an indictment for perjury on the other. A reasonable compliance with the law does not subject him to either peril. The act was not intended as a trap in which to catch honest voters: it was passed to secure an honest, unhought, and unintimidated ballot; to prevent the lawfully-expressed will of the duly-qualified elector from being set aside by the corrupt practices which have in so many instances defeated the will of the people.
Is there any practical difficulty in the elector’s stating when
The voter must also state where the tax was assessed. Surely there is neither hardship nor inconvenience in this. The voter knows in what township, borough, or ward his property is situate, and in which it is assessed. It may be very convenient for the fraudulent voter to take a general affidavit that he has been assessed with a tax, wholly omitting the place where it was so assessed. In such case, there is nothing by which the accuracy of his statement can be conveniently tested, and a prosecution for perjury would be difficult. The duly qualified elector, who casts an honest ballot himself, and desires that others shall do the same, has no need to shelter himself behind a loose, vague affidavit.
Nor is it any hardship to the naturalized citizen to require him to state when, where, and by what court he was naturalized. They obtain the great privilege of American citizenship cheaply enough to justify their graceful submission to the laws of the country of their adoption. When the illustrious Paul asserted his right as a Roman citizen to be heard before he was condemned, the chief captain said to him, “ With a great sum obtained I this freedom; ” to which Paul replied, “ But I was free born.” We are more generous than was imperial Rome, and the citizenship for which she exacted a “ great sum ” we bestow freely upon all who ask for it.
As before remarked, the contention upon this point settles down to the argumentum ab ineonvenienti. It may be that the careless voter who does not value his privilege sufficiently to see, as every one can see with very little trouble, that his name is placed upon the registry list, and who gives no thought to the means to establish his right to vote until he comes to the poll to deposit his ballot, may suffer some inconvenience, and in some instances lose his vote, not because he is not duly qualified, but for the reason that he has not the means of proof at hand to satisfy the tribunal which the law has appointed to hear his case. So, the litigant in a suit at law may be defeated though his case be never so good, if he fail to produce his evidence at the proper time. When an unregistered elector offers his vote at the poll, the law challenges it instantly, and he knows that he can only avoid the challenge by a strict compli
Other defects in the affidavit were pointed out by the learned judge below in his opinion, which we need not discuss at length. One was, that it does not state whether the voter was a native-born or a naturalized citizen, and, if the latter, when, where, and by what court naturalized, etc.; and another was that there is no jurat to the voter’s affidavit, and the witness’s affidavit or its jurat does not state that either of said affidavits were subscribed by the said voter. It is sufficient to say that the act, being mandatory, must be strictly complied with. The law, however, does not intend that a duly qualified elector should lose his vote for the negligence or misprision of an election officer. Hence, I apprehend that, when an affidavit has in point of fact been made in compliance with the act, and the informality is the result of the ignorance or neglect of the officer before whom it was taken, such defect could be cured and the paper reformed, upon due proof of what occurred at the time.
The second assignment alleges that the court erred in declaring certain votes to be illegal, on request of contestants, in election districts not mentioned in contestants’ petition. As I understand the case, this point arose in the following manner : In their petition, the contestants specified certain districts, in the county, in which they alleged frauds were committed, and, of course, were confined in their testimony to those particular districts. But the respondent, in his answer, alleged that illegal votes had been received and counted in every election district in the county. This put the whole county in issue, and he was correspondingly unlimited in his proofs. The whole body of election records and returns of the general election of 1888, and the corresponding registry lists, were put in evidence by him. He now seeks to utilize so much of this evidence as will serve his turn, and reject the remainder. This
The third assignment alleges that “ the court erred in declining to permit certain election officers to come in and sign the jurats of the affidavits of certain voters and witnesses upon request made therefor, where it appeared by a clerical omission said jurats were not signed by said election officers at the time of the election.” I have already, intimated that an affidavit which is merely defective from the absence of the jurat, may be reformed upon due proof that it was properly made before the proper officer. Such a principle was recognized in Pottsville Bor. v. Curry, 32 Pa. 443. It was there said by Mr. Justice Strong : “ A party is not to lose his right to trial by jury through the mistake or omission of the officer of the law. Here the oath required by the act of assembly had actually been made, and it had been reduced to writing. The attestation by the prothonotary, only, was omitted. The appellants had done all that the law required to obtain the appeal, and could not be affected by the failure of the prothonotary to discharge his duty.” It is true, this occurred in a civil suit in the Common Pleas, but the decision applies with equal force to an election contest. Why should the elector lose his vote because of the neglect of the officer of the law in attaching the jurat? Such mistake may not only be innocent, but is likely to occur at a crowded poll, particularly in view of the fact that the election officers, in many instances, are without experience. I notice that this principle has been applied by the lower courts to election cases in some instances: See McCann v. Shonk, 4 Luz. L. Reg. 91; Griffith’s Case, 9 Luz. L. Reg. 211. While the learned court below were not agreed upon the law as applicable to this motion, they refused it because it was not sustained by the evidence. There was nothing before the court upon which the affidavits could have been reformed. The evidence was general and vague in its character, and not confined to specific affidavits. The voters who took and subscribed the affidavits
The fourth, fifth, sixth, and seventh assignments are sufficiently covered by what has already been said. None of them is sustained. The eighth and last assignment is the formal one that the court erred in its decree that John H. Thomas was duty elected to the office of clerk of the courts of Lackawanna county. This does not require discussion. We see no reason to interfere with the action of the court below.
The decree is affirmed, and the appeal dismissed at the costs of the appellant.