58 Pa. 338 | Pa. | 1868
Lead Opinion
The opinion of the court was delivered, July 2d 1868, by
The first of these bills was filed by the plaintiffs, residents, taxpayers and qualified voters of this city, against the defendants, the aldermen of the city, to restrain them from exercising certain powers and authority in their aggregate capacity; which, it is alleged, they claim to be conferred upon
These bills question the constitutionality of the Act of Assembly referred to, and familiarly known as the “Registry Act,” and charge, among other matters, that a large sum of money will be required from the city treasury to put the act into operation, which, as taxpayers, they are interested to prevent, and which would be wholly misapplied, the act being, as they allege, unconstitutional and void. The right of the plaintiffs to interfere on these grounds was not disputed, neither do I think it could have been at any time since the decision in Sharpless v. The Mayor, &c., 9 Harris 147, and Moers v. The City of Reading, Id. 188. In both, it was conceded that the interest of a taxpayer, where money was to be raised by taxation, or expended from the treasury, was sufficient to entitle him to proceed in equity to test the validity of the law which proposed the assessment or expenditure. To this effect is Mott v. The Pennsylvania Railroad Co., 6 Casey 9. That we have power to enjoin the respondents has not been disputed. The cases of Kerr v. Trego, 11 Wright 292, Irving v. Thompson, 7 Id. 379, if. authority were wanting, would he sufficient for this.
The power of this court and its duty to declare an Act of Assembly unconstitutional, if it be plainly so, is no more to be doubted than its power to declare an instrument of writing void for want of due execution. This power is not disputed. What shall be the test of want of constitutional sanction, is a question of more or less difficulty in all cases involving it. It is usual on the part of those who insist on the constitutionality of any given statute, to claim that it must be regarded as constitutional, unless expressly prohibited by some provision in the constitution. In other words, in construing the constitution of the state, whatever is not expressly denied to the legislative power is possessed by it. The opposite of this rule, I may remark, is the rule of construction of the Federal Constitution. I assent to this, but not that the inhibitions of the constitution must be always express. They are equally effective, and not less to he regarded, when they arise by implication, and this is the case when the legis
These instances illustrate the. principle of the authorities, which hold, that acts repugnant to the constitution are void by implication, and at the same time they also illustrate the inquiry in the case in hand, whether this act is constitutional.
In Article III.] Section 1. The constitution declares, “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he intends to vote ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector; but a citizen of the United States who had previously been a qualified voter of this state and removed therefrom and returned, and who shall have resided in the election district, and paid taxes as aforesaid, shall be entitled to vote after residing in the state six months. Provided, That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the election district ten days as aforesaid, shall be entitled to vote, although they shall not have paid taxes.”
These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instru
For the orderly exercise of the right resulting from these qualifications, it is admitted that the legislature must prescribe necessary regulations, as to the places, mode and manner, and whatever else may be required, to insure its full and free exercise. But this duty and right, inherently imply, that such regulations are to be subordinate to the enjoyment of the right, the exercise of which is regulated. The right must not be impaired by the regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded under the name or pretence of regulation, and thus would the natural order of things be subverted by making the principle subordinate to the accessory. To state is to prove this position. As a corrollary of this, no constitutional qualification of an elector can in the least be abridged, added to, or altered, by legislation or the pretence of legislation. Any such action would necessarily be absolutely void and of no effect. We hold, therefore, what indeed was not expressly denied, that no regulation can be valid which would have the effect to increase the district, or state residence, prior to the time of an offer to exercise the right of an elector, or which would impose other or additional taxation or assessments, than those provided in the constitution.
With these principles in view, we are to inquire how far the provisions of the Act of Assembly in question, conflict, if at all, with the provisions of the constitution on the subject of the qualifications and rights of electors. Before proceeding to this, however, I must remark, that the regulations in the act are materially distinct and different in the other portions of the state from those proposed and intended for this city. I have not time or room in this opinion to point them out. A very cursory reading of the act will suffice to show it. In the city they are more complex, and consequently render the chances of registration, in my opinion, more difficult and precarious. For myself, I think a material diversity of regulation, not the result of locality merely, but of policy, between different parts of the state, is itself, a violation of the guaranty in the bill of rights, that “ elections shall be free and equal” to all those possessed of the designated qualifications. If policy, and not locality or physical necessity, be allowed as reasons for a great diversity of regulation, the political bias of a section might become the pretext for the complication of regulations, in order to enjoy the rights of an elector, so as to be destructive of the right itself. If all the citizens are within the equal protection of the provision quoted, that
But to proceed with the inquiry proposed above: In answer to the argument that the legislature could not, constitutionally, authorize the aldermen of the city, to act as a. board for the purpose of appointing boards of canvassers, beeause they might not be willing to act, we think the contingency referred to hardly sufficient to produce such a conclusion. We are not prepared to say at this time, that they might not be compelled to assemble and act. It is not likely, however, that they would ever refuse.
It is provided in the act, that the board of canvassers in the several districts, shall not be constituted all of one political party. As there is no obligation on any one to adhere for any definite length of time to a professed preference for any political party, the rule or qualification is utterly uncertain in its nature, and, to a great extent, in practice. In times of great excitement and political changes, the rule would exist but in name, while in fact it might not exist at all. It is a proffer of fairness so far as diversity of political sentiment is concerned, without the slightest assurance that it will be so in fact. We cannot, however, correct unwise legislation, and we see nothing in it repugnant to any constitutional provision and it is not expressly prohibited.
But considerations more directly affecting the questions of the ease claim attention. The 13th and 14th sections of the act, prescribe the duties of the canvassers most important to be considered in this inquiry, and these provisions will therefore demand some particularity of notice.
In the first place, the canvassers for the election districts in the city, to be appointed by the board of aldermen, as provided in the 12th section, are required to meet in their respective districts on the first Monday of September, annually, and on that and the two ensuing days “ make out an alphabetical list of all such persons as they shall know to be qualified electors, who have voted at any preceding general election,” &c., designating therein whether the voter is a housekeeper or boarder, and his occupation, and with whom he boards, if not a housekeeper. When this list shall have been completed, it is to be subscribed and sworn to by the canvassers, or a majority, and three copies made, one to be delivered to the city commissioners, one to the board of aldermen, and the third to be retained by the board of canvassers. This list the city commissioners are, on its receipt, to have immediately printed and posted in at least two places in the district, with a “ notice thereon, that the boards of canvassers will meet at the places of holding the general elections, on the twelfth day preceding the general election day, and for two days then next ensuing, for the purpose
This being so, numbers, probably a majority of the electors in many districts, would, in order to be registered and entitled to vote, be obliged to apply to the canvassers, who are to meet on the twelfth day before the day of holding the general election, and on that and the two following days between the hours of 10 A. M. and 7 P. M., of each day, make the proof required by section 14 of the act, in order to procure registration. The provisions on this subject are as follows:
“ Each person so claiming to be entitled to vote therein, shall produce at least one qualified voter of said division, as a witness, of the residence of said claimant in said division for the period of at least ten days, next preceding the general election then next ensuing; which witness shall take and subscribe an affidavit to the facts stated by him; which affidavit shall define clearly the residence of the person so claiming to be a voter; and the person so claiming the rights to- be registered, shall also take and subscribe an affidavit stating where he was born ; that he is a citizen of this commonwealth and of the United States; and if a naturalized citizen, shall also present his certificate of naturalization for examination, unless he shall have been a voter in such election district for five years then next preceding the general election then next ensuing; that he has resided in this commonwealth one year, or if formerly a citizen therein, and has removed therefrom, that he has resided therein six months next preceding the general election then next following; that he has not moved into the division for the purpose of voting therein; that he has not been registered as a voter elsewhere; which said affidavits, both
The time for revising this list is to be closed at 7 o’clock p. M. on the evening of the tenth day preceding the general election. Then the canvassers are required to make four copies of the revised list; one for the board of aldermen, which is to be accompanied by the affidavits of the applicants and witnesses; one to the assessors of the ward, who shall thereupon immediately assess a tax according to law, upon every person whose name is contained on said list, and deliver the same to the city commissioners, who shall cause a sufficient number of copies to be printed for the use of the receiver of taxes, one of which they shall deliver to the judges and inspectors of election of the division; and as to this list section 15 provides thus: “ The only evidence that such person has resided in such election division for ten days next preceding such election, shall be the fact that his name is found thereon as hereinbefore provided; and the reception of the vote of any person not so proved shall constitute .a misdemeanor in the election officers so receiving it., and on conviction thereof the election officers so offending shall be subject to a fine not exceeding $500, and imprisonment not exceeding one year, at the discretion of the court.”
How it is possible after 7 o’clock p. m. of the tenth day before the election day, that four lists of the voters of the division, especially in heavy districts, can be made out in time for the assessors of the ward to assess a tax on every person whose name appears on the list, as registered, by the act, before 12 M. of the night of the tenth day before the election, even supposing them bound to be in attendance at some particular spot for the purpose, which they are not, is certainly not easy to comprehend; and without all this be done, the elector must be deprived of his right to vote. Notwithstanding his name might be on the list, still the act requires assessment in all such cases to complete registration. If that should be wanting the process would not be complete; he would not be entitled to vote as a necessary result. This must be so, or the required assessment of all persons whose names were to be placed on the revised list was intended for an unnecessary, idle ceremony. This we are not to suppose. It would require a great degree of credulity to believe that hundreds, nay thousands, of voters in the city would not be deprived of their constitutional rights of electors by this process, abridged in time for execution, as we have shown it would be. The accumulation of affidavits, not oaths merely — the attendance on the board of canvassers, it may be, day after day (for the act contemplates that there may be required three days to revise the list), in hearing applicants for registration, the necessary application by the voter to be assessed, which if made at all cannot be earlier than in the night time of
But there are more obvious and clear violations of the constitutional rights of electors in the provisions of the section quoted; and as to these a majority of us fully concur, and mainly rest this decision.
The constitution requires a previous residence, when the citizen offers to vote, of ten days in the district. The act requires ten days residence in order to be admitted to registration, and proof to be made at least ten days before election day. This is a plain requirement of proof of twenty instead of ten days, as required by the constitution. The words of this provision are peculiar. They are: “ The person so claiming to be entitled to vote, shall produce at least one qualified voter of the said division as a witness, of the residence of said claimant in said division for the period of at least ten days next preceding the general election next ensuing.” The witness is to prove a fact which has transpired at the time he subscribes the oath, namely, a residence of ten days. He is not to swear to facts that might raise a presumption that the elector would reside in the district ten days immediately preceding the election, but to depose to his knowledge of actual residence; and that nobody can do unless it has taken place. If, therefore, the witness could affirm to only nine days’ residence in the district when called before the canvassers, the right of registration would not be made out, and although on election day the citizen may have resided nineteen days in the district, he would be deprived of his vote because not on the list. The absence of his name there, is made conclusive against his right. The law, as it stands in regard to proof of residence before the board
In The Commonwealth v. Cornish, 6 Binn. 249, it was held that a Witness, undertaking to swear to a fact of which he had no knowledge, is guilty of perjury, although the fact might turn out to be true.
It was admitted on argument by one of the learned counsel for the respondents, and who also admitted an agency in preparing the act, that as it stood it was a mistake — “ a blunder” — but he proposed no remedy which we are competent to adopt. We cannot say that the canvassers shall receive other evidence than that required by the act. In short, it is not possible to prove the constitutional term of residence before it has taken place. If, as suggested, the name appearing on the registry ten days before the election were intended to be evidence that the voter was a resident in the district at the time of registration, why. was proof required of any time before the day of registration ? And if on that day, of course it would be no evidence of continued residence up to the day of election, as required, and would be an idle ceremony merely. The view urged is impossible to be entertained, because the express provisions of the section will not admit of it, and besides, no opinion of any court could insure uniformity in the boards of canvassers on this point, even if the views suggested were possible to be adopted.
Precisely the same difficulty extends to the cases of persons coming to reside in the state, or of returned citizens. Each must anticipate the period of constitutional qualification by ten days’ residence more than is required by its provisions; that is to say, they must prove the constitutional requirement complete, in order to be registered, ten days before exercising the right of voting. This adds to that qualification ten days. One year and ten days in the one case, and six months and ten days’ residence in the other, is the requirement of the act. The proof cannot be made before the board of canvassers in any other way, in accordance with the act, and in this way the requirement is clearly violative of the constitution, which concedes the right to vote if the period of residence be complete at the moment the offer to vote is made.
In regard to persons entitled to vote on age: supposing any provision for registration in favor of that class exists at all, which is doubtful, the proposed voter is to prove, by a qualified voter of the district, his right before it has accrued, if it happens that he will arrive at age less than ten days before the day of election. According also to the terms of the act such a voter, if placed on the revised list, would be subject to be assessed. All on that list
In the case of naturalized citizens, whose naturalization papers shall be procured less than ten days before election, they will necessarily be prevented by the act from exercising the rights of electors, because the exhibition of complete naturalization papers to the canvassers ten days before election is indispensable in order to registration. It must be remembered that, according to the act, under no circumstances whatever can any qualified citizen exercise the right of an elector, unless his name be on the registration list ten days before the election, without • subjecting the election ofiicers to fine and imprisonment. Thus all such citizens would be excluded. What shall be the proof on which sons of naturalized citizens are to be registered, is not stated, and of course their rights to registration will depend on the discretion of the canvassers, and be accepted or rejected at pleasure.
It seems inevitable that in all cases where the voter’s qualification becomes complete, according to the constitution, only within ten days before any general election, he cannot be registered from inability to make the proof required by the act, and consequently will be deprived of his right to vote if the act be sustained as constitutional. For these reasons a majority of us concur in holding the act unconstitutional, and of course void. We cannot declare it partially void, because of the special provisions applicable to the city of Philadelphia. Were we so to hold, and were it possible to sustain the balance of the act, it would leave in force the repealing clause which repeals all laws inconsistent with the act, and thus Philadelphia would be without election laws, and her citizens disfranchised. This we cannot do. It must exist as an entirety or not at all. Indeed, independently of this consideration, the same objections exist to the proof necessary to be made in order to registration in other portions of the state, where the names are omitted from the primary lists of the assessors, and application has to be made to be registered, that exist in the 14th section, as applicable to Philadelphia, to which we have referred at length. This clearly appears in the 2d and 3d provisions to the 3d section of the act.
I admit that unwise, and even unfair legislation, if such a thing could be imputed to any act of the legislature, is not necessarily void; yet peculiarities in legislation may be a reason for critical investigation. In examining the act in question, I could not but remark, that although it abounds in penalties, especially in that portion applicable to the city, against violations of its provisions by voters, witnesses and election ofiicers, yet there are none denounced against boards of canvassers for wrongfully refusing to register a voter who may have met every requisition in order
This ought to be sufficient. But the attempted change of the election laws, has its strongest, if not only reason, in the assumption, in some instances no doubt just, that official oaths have been insufficient under existing laws to guard against cheating and frauds in elections. What reason there is to expect that they would be better observed under the new law, is not apparent. No higher qualification for the office of canvasser is required than for a judge or inspector of an election board. The same results may therefore be as reasonably anticipated in the one case as in the other. The securing of fairness is not improved in the provisions on the subject, most certainly.
But I will not follow this train of thought further. I agree that it is always a grave matter to set aside an act of the legislature, and I doubt if there is any instance of its having been done where the people have asked by petition for legislation. They are careful of their constitutional rights. In the case in hand, which is an act of the greatest public consequence, the “Daily Legislative Record,” an official publication of the legislative proceedings, gives no account of petitions of the people for the great change of law attempted; or, so far as the city is concerned, that the act was the work of any committee; but it does show that the provisions of it were ostensibly the work of a single member, presented to the House in manuscript, and without having been printed, passed that House without debate. In this shape it went to the Senate, where it was almost immediately agreed to without the allowance of debate or printing. This may well account for the incongruous and unconstitutional features of the act. These facts, however, have had no weight whatever in producing the result at which we have arrived. They might well stimulate the activity of the scrutiny exercised in examining the provisions of the act, but they had no other effect.
I have not specially noticed the citation of authorities by the counsel for respondents, to prove that registration laws have been held constitutional by the courts of other states. This may be •owing to the peculiarities of the constitutional provisions of those states; but another reason exists for not noticing them. We do not mean at this moment to decide that no constitutional registration law can be enacted. For myself I think there might be, and possibly in such form as to protect the rights of all legal voters, and secure the people, to some extent at least, against the possibility of fraud at the ballot-box. Be this, however, as it may, we are not ready to assent to the act in question as of this character, or within the power of the legislature to pass. This conclusion leaves all the election laws in force which were intended to be superseded by this act. Their provisions are well understood.
A registry law might be framed under our constitution. Such a law is desirable. I see but one objection to the constitutionality of the Act of 1868. It is, that it deprives of a vote those who may move into an election district more than ten days prior to an election, but less then twenty. In this particular alone the act is unconstitutional.
Dissenting Opinion
dissenting. — The purpose of these bills is to restrain, by injunction, the aldermen, councils, commissioners, controller and treasurer of the city of Philadelphia from carrying into execution any part of the act for the registration of electors, passed the 4th of April 1868. They assume that the entire law is unconstitutional and void. The general scheme of the act is this: The aldermen of the city are constituted a board for the appointment of three persons called canvassers, who shall not all belong to any one party, for each election division of the city. It is the duty of the canvassers to meet on the first Monday in September in each year, and make out a list of all the qualified electors known to them in their respective divisions. They then subscribe and make oath to these lists. The lists are to be printed and posted in at least ten places in each election division, together with a notice of the next meeting of the canvassers to revise, correct and complete the lists. That meeting is required to be on the twelfth, eleventh and tenth days next preceding the day of the general election, and is to continue from 10 o’clock A. M. until 7 o’clock p. M. of each day. At this meeting it shall be the duty of the canvassers to add to their lists the names of all who claim to be registered as .voters, on proof by one witness, himself a qualified elector, of the residence of the claimant within the division, for a period not [later than ten days before the day of the election; and on the oath of the claimant himself, of the time and place of his nativity, that he is a citizen, and has resided in the state one year, or in case of removal and return, six months previous to the day of the ensuing election; and also that he has not moved into the division for the purpose of voting therein, and
What could be more fair than this mode of ascertaining the legal voters of the commonwealth ? It denies to no one any right secured to him by the constitution, and secures to the true electors, first, their own right, and then the value of their ballots, by pre- ■ venting neutralization by means of frauds. If the right of an elector be valuable, surely that system is most just which secures it from depreciation. The majority rule, when believed to be honestly administered, carries with it a moral power far beyond the sway of kings. But as a principle, it depends on the confidence begotten by it. The moment it is thought to be tainted with fraud, and the will of the true majority not faithfully expressed, distrust, dissension, and disturbance will follow. Confidence is lost, the essential principles of free government are endangered, evil passions inflamed, and peace destroyed. The remarks of the late John Sergeant, President of the Constitutional Reform Convention of 1837^ in the debate on the 3d article, are felicitous and to the point: “We could not make a system so perfect that it should do no injustice to any one in the course of its operation; but he believed, under the present system, where one man properly entitled to vote was excluded, ten men voted who were not entitled to. Do you mean to have any limit at all ? Do you intend to draw no line between your resident citizens, and vagrants and transient persons ? If not, then let the judges and inspectors of elections take every vote that is offered, even without any name at all. Let every one go and vote, first in each of the fifteen wards of Philadelphia, and afterwards in Southwark and Spring Garden.” John Sergeant was one of Philadelphia’s ablest and noblest sons. What, then, can be more honest, fair and just, than a system which ascertains who are the actual resident voters on the tenth day before the election 1 Is there any one who can
A registry law is constitutional. It has been well "said that a constitution cannot execute itself. An outline, like the frame of a house, it is unfit for use until it is built and fitted up by the carpentry of the law. The constitution declares that in elections by the citizens, every white freeman (having the prescribed qualifications) shall enjoy the rights of an elector. But who are the citizens, and how and where shall they vote ? When, in what manner, and by whom shall their citizenship, identity and qualifications be ascertained ? All these are unwritten in the constitution, and are therefore left to legislation. Excepting the day of the general election, and the qualifications of the electors, the whole subject lies absolutely within the domain of legislative power. The entire machinery of elections, and the evidence of the identity and qualifications of electors, are now regulated by law. What is there to prevent the repeal of one system and the substitution of another ? A chief duty under our system of government, is to ascertain who are the qualified electors. It is as clear a breach of the constitution to admit unauthorized persons to vote, as to exclude legal electors. A just registry of the electors is therefore constitutional and necessary, as a proper means of identifying those who offer their votes, and “ calculated to promote peace, order, and celerity in the conduct of elections.” Being within the scope of undoubted legislative power, unless its provisions plainly and palpably (I adopt an approved form of expression) infringe the fundamental law, this court cannot arrest its execution. The nature of this proceeding demands a proper consideration of its true character. We are asked to place a judicial veto upon an entire system. No suitor is before us complaining of any provision in it affecting his own right of suffrage, but we are asked at the instance of private parties, to strangle the whole law, by restraining the board of aldermen from appointing the canvassers. This strikes down the entire system in all its parts. Who asks this to be done ? Not the board of aldermen. They have met, and are ready to proceed to perform their duty, if we will permit them. But private citizens, as yet uninjured, and never likely to be, complain, and inform us that the aldermen are judicial officers, and the legislature ought not to impose this duty upon them.
But what is this to them ? If the aldermen are willing, what right has one to say nay ? It is time enough for a court of equity to interpose, when the aldermen complain of an invasion of their rights. Is the act of a judicial officer, performed under the express authority of law, absolutely void, merely because it is not strictly judicial in its nature ? This is the very point we must decide before we can enjoin against the act, at the instance of these private parties. To assert that the exercise of such powers is a
Who has ever doubted the right of judges or justices, at least at their own option, to perform functions of this character, when expressly authorized by law ? Are we then, by the strong hand of power, to overturn this long-settled practice, at the instance of mere private parties ? Nothing, it seems to me, but the wildest notions of equity or law could suggest such a proceeding — notions having their parallel only in the argument that we ought to stop the aldermen from proceeding at all events, because, possibly, they might all decline to act. It is sufficient for us, however, that the aldermen have met, and have adjourned only out of respect for our process. If this injunction be supported, the next step we may expect will be, on the death or resignation of a district attorney, the disinterested citizens of our commonwealth, who are under recognisance or indictment to answer for supposed offences, will ask us to enjoin the judges, as judicial officers, from filling the vacancy. And to carry out the wholesome principle of preventing judicial officers from performing such duty, we may arrest the affairs of any unfortunate county or township, that may lose its officers by death, resignation or removal.
The next objection to this law is even more unfounded. It is said the law requires the aldermen to appoint canvassers from the different political parties, and it is therefore a partisan measure. This is not so. They are to appoint “ three reputable citizens for each election division of said city, all of whom shall not be of the same political party.” They are not to appoint all of one party, but where does the law say they shall appoint partisans at all ? What good man who desires to see fair dealing and to pre
If the board of aldermen be restrained upon such pretexts, what then ? It is said the old law is revived, though expressly repealed. But does this follow ? The repeal of a repealing law revives the former law, for this is the specific intent and necessary effect of the repeal of a repeal. But here we have a substitute and a repeal. When the substitute falls, not by legislative repeal, but a judicial decree, how is the old law revived ? Certainly not by our act, for we exercise no legislative power. We say the substitute is invalid, but can we say the former law shall be reinstated ? This requires legislative power.
Objections have been taken to the duties prescribed for the boards of canvassers. It is said the law confines the formation of the lists of voters at their first meeting to the personal knowledge of the canvassers. The law uses no such language. They are to make out “ an alphabetical list of all such persons as they shall know to he qualified electors who have voted at any preceding general election therein.” How are they to know? By having been at the polls and watched the persons depositing their ballots ? This is the only means of a personal knowledge. But this meaning is clearly absurd, and cannot be imputed to the legislature. They are to know who have voted as qualified electors at any preceding general election by the usual means of knowledge, to wit, the lists of voters. When the law gets into operation there will be no difficulty in knowing who are the qualified electors, so as to make out a very full and nearly complete list, as they will have the former register as well as the list of voters, in addition to their own knowledge of the persons in their divisions. One of the meanings given by lexicographers to the word “ know” is, “ to be informed of:” Webster, Worcester. The objection is hypercritical and groundless.
The lists having been completed at the first meeting, as far as the means of knowledge of the canvassers would then admit of, they are required to meet again to revise and correct the list, by striking off the names of all persons ascertained to be deceased or removed, and by adding the names of others, who shall, “ to their satisfaction, in conformity with the provisions of the' act, prove themselves to be qualified electors of said election division.” We have now reached the most vehement objection. It is said the proof required of the person claiming to be added to the list
A fair-minded man, it seems to me, cannot fail to perceive the meaning of this provision, though awkwardly expressed. The claimant must prove his actual residence in the election division, and this residence must have existed at least ten days (the constitutional limit) before the election which is to ensue. It may be as much more as the party can prove, but it must have commenced at least ten days before the election. The canvassers are required to sit for three days in succession, the last being the tenth day before the election, and to remain in session until seven o’clock in the evening, the latest business hour, and the latest period when any one can be reasonably expected to remove into the district. The claimant has therefore until dusk of the tenth day before the election, to bring his witness, and prove his removal into the district. The purpose of the law in requiring the witness of the residence to state also, that it is for a period not less than ten days before the next election, was no doubt to prevent fraudulent proofs, by adjournment over within the ten days; or by equivocal or general expressions, which would leave the time when the residence commenced, uncertain. A fair survey of the section will show that residence is the subject of proof, the important fact to be clearly ascertained. The language is, “ A witness of the residence of said claimant” — and the affidavit “ shall define clearly
A kindred criticism is applied by the objectors to that portion of the affidavit of the claimant reading as follows: “ That he has resided in this Commonwealth one year,” or, in case of removal and return, “ that he has resided therein six months next preceding the general election then next following.” It is said this means the claimant must swear that he will reside therein until the day of the election, in order to complete the one year or six months; and this he may not safely do. If it means that he has resided a year or six months before the date of the oath, it would require a longer residence than the constitution prescribes. Yet the language expresses no such thought, and certainly does not mean it. It merely says, “he has resided one year or six months next preceding the general election,” and means simply, that the period of residence runs hack to a period of one year or six months before the election. The day of election is stated only for the purpose of computing the time backward, not forward. The registration on the tenth or twelfth day before the election, stands,
The next objection scarcely deserves notice. On the completion of the lists of electors, a copy is to be handed to the assessors, “ who thereupon shall immediately assess a tax according to law upon every person whose name is contained in said list, and deliver the same to the city commissioners.” It is thought this will subject to double taxation. This is not correct. This act provides neither for what taxes shall be assessed nor how they shall be collected, leaving the kind of tax, the appeal, the collection and all matters relating to it, to be regulated by the general laws. The assessor is plainly remitted to the general law, to govern himself accordingly. The list is handed to him in the last of September or first of October, after the taxes of the current year have been assessed and gone into collection. He is the same assessor who is to assess the next year’s tax. The assessment is plainly, therefore, a part of the assessment of the same fall for the next year’s tax, and the evident purpose of this act is to secure the proper assessment of each registered voter every fall. It is for this reason every registered person is to be assessed, and the list to be returned to the commissioners, who carry it into the approaching assessment, and must take care that no one is doubly assessed; and if he be, he has his remedy by appeal, at the usual time and place.
It is also objected that the list is handed over to the assessors too late to make the assessment ten days before the election. But as the purpose, as already stated, was to furnish a system for taxing all the electors every year, it is evident this provision was not intended to supply the means of assessment for untaxed electors in time for the ensuing election, and therefore does not supply the old law which exists for this purpose. Those, therefore, who have not paid a tax within two years, can still avail themselves of the old law, and procure themselves to be assessed ten days before the election, and thus entitle themselves to vote as heretofore. It is also to be borne in mind that the assessment is no part of the registry, and that one whose name is registered can therefore vote on any payment of taxes within the constitutional provision.
But were all these objections to the proceedings before the canvassers to be conceded, what right have we, at the instance of these plaintiffs, to restrain the board of aldermen ? The injunction should issue against the canvassers only, to restrain them from executing that portion of the law we may deem to be invalid. Clearly they have a right to make out lists, and erase and correct them by proper legal evidence. If they undertake to make witnesses swear to impossibilities, or the party to swear to a future
What right have we as a court to set ourselves against the whole system, a matter within the undoubted power of the legislature ? We are not a counsel of censors to revise legislation; but our whole duty is performed when we redress the wrong of a party injured by some invalid portion of the law. The system is charged with expensiveness, but the remedy for this lies with the people themselves and their representatives. The question of a registration is not a new thing. It was thoroughly investigated, and decided to be a valid exercise of legislative power, in Capen v. Foster, 12 Pickering 485. The opinion of Chief Justice Shaw is one of marked ability, and I cannot do better than to transcribe the following paragraphs:—
“ The constitution, by carefully prescribing the qualifications of voters, necessarily requires that an examination of the claims of persons to vote on the ground of possessing these qualifications, must at some time be had by those who are to decide on them. The time and labor necessary to complete their investigations, must increase in proportion to the increased number of voters, and, indeed, in a still greater ratio in populous commercial and manufacturing towns, in' which the inhabitants are frequently changing, and where of necessity many of the qualified voters are strangers to the'selectmen.
“ If, then, the constitution has made no provision in regard to the time, place and manner in which such examination shall be had, and yet such examination is necessarily incident to the enjoyment and exercise of the right of voting, it constitutes one of those subj ects respecting the mode of exercising the right, in relation to which it is competent to the legislature to make suitable and reasonable regulations, not calculated to defeat or impair the right of voting, but rather to facilitate and secure the exercise of that right.”
“ And the court is of opinion that the provision in the general law regulating elections, and that in the act incorporating the city, which requires that the qualifications of voters shall be previously offered and proved in order to entitle them to vote, that their names shall be entered upon an alphabetical list or register of voters, is highly beneficial and useful, ..calculated to promote peace, order and celerity in the conduct of elections, and as such to facilitate and secure this most precious right, to those who
“ Nothing but the carelessness or neglect of the voter himself, or some accident not attributable to the law or the officers who are to execute it, can deprive him of the power of proving his right and exercising his privilege, and against these it would be difficult, either by legal or constitutional provisions, entirely to guard.”
I therefore, for all these reasons, dissent from the judgment just entered by the court
Dissenting Opinion
dissenting. — A majority of the court think that a registry law, properly framed, is constitutional, and well calculated to prevent frauds at election. I agree with my brother Agnew, that the Registry Act is constitutional, and could be carried into effective operation.
I was counsel of Mr. Kneass in 1851, and of Mr. Mann in 1856, and from what I saw in those contested election cases, I was fully convinced that the election laws were utterly inefficient in preventing fraud, and subsequent experience has confirmed me in my opinion. In some districts of the city — “ plague spots”— fraudulent voting is the rule, and honest voting the exception.
I am fully convinced that nothing but a registry law, honestly and firmly administered, can cure an evil which strikes at the root of our republican institutions.