60 Pa. 54 | Pa. | 1869
Lead Opinion
The opinion of the court was delivered, by
— We regret that the necessity for an immediate decision in this case has allowed so short a time for the preparation of our opinion; and that the public character of the questions demands a treatment too full to be compatible with brevity.
The plaintiffs are private citizens, electors of the Commonwealth, tax-payers, and holders of real estate in the city of Philadelphia. By their bill they ask us to declare illegal and void an Act of the General Assembly passed the 17th of April 1869, supplementary to the election laws of the Commonwealth; and to enjoin the councils, aldermen, commissioners, controller, and treasurer of the city from carrying its provisions into effect. The defendants deny the standing of the plaintiffs as proper parties, and the jurisdiction of the court over the subject. In view of the danger to the peace and quiet of the people, if the constitutionality of this law should be left in uncertainty, we shall pass by the questions of standing and jurisdiction, in order to reach the all-important one upon the validity of the law. In passing them by, we do not mean it to be inferred that we have not grave doubts of the right of the plaintiffs to represent the public, and of our own jurisdiction to enjoin against one of the political systems of the state in its entire scope, because of the invalidity of some of its provisions. We doubt the right of the plaintiffs to call for an injunction beyond that portion of the law, which they, as private citizens, can show to be injurious to their own rights; and it is more than doubtful how far as private citizens they can impugn the law in its public aspects, and ask us to restrain its execution on public grounds. This is the only system to regulate elections intended by the legislature to be left in force; all laws supplied by it and all inconsistent with it being expressly repealed. If as a court of equity we can lay our hands on the whole system because of the illegality of some of its parts, we can, on the eve of any election, arrest the entire political machinery of the Commonwealth, which
We come'now to the important question whether the Act of 17th 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 the electors, whether called a list of taxables or a register 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 free only to the qualified electors of the Commonwealth. Clearly they are not free to the unqualified. There must be a means of distinguishing the qualified from the unqualified, and this can be done only by a tribunal to decide, and by evidence upon which a decision can be made. The Constitution does not provide these, and therefore the legislature must establish the tribunal, and the means of ascertaining who are and who are not the qualified electors; and must designate the evidence which shall identify and prove to this tribunal the persons and the qualifications of the electors. How shall elections be made equal? Clearly by laws which shall arrange all the qualified electors into suitable districts, and make their votes equally potent in the election; so that some shall not have more votes than others, and that all shall have an equal share in filling the offices of the Commonwealth. But how shall this freedom and equality be secured? The Constitution has given no rule and furnished no guide. It has not said that the regulations to effect this shall be uniform. It has simply enjoined the duty and left the means of accomplishment to the legislature. The discretion, therefore, belongs to the General Assembly, is a sound one, and cannot be reviewed by any other department of the government, except in a case of plain, palpable and clear abuse of the power which actually infringes the rights of the electors. It is not possible, nor does the Constitution require, that this freedom and equality of election shall be a perfect one.
This is not a new question. A registry law for the city and county of Philadelphia was passed on the 16th day of June 1836. The list of voters corrected and certified on the first Tuesday of October, one week before the election, was made “ the only and conclusive evidence of the qualifications of the electors thereof except in the eases of naturalization hereinbefore mentioned.”
No attempt was ever made to question the constitutionality of the Registry Law of 1836, though enacted under the provision of the Constitution of 1790 now in force. It was in force when the Convention to amend the Constitution sat in 1837-8, and entered largely into its discussions. The attention of the convention was thoroughly aroused to it. ■ In committee of the whole on the report of the committee on the 9th article, Mr. Sterigere,
Mr. Sterigere stated that this amendment was offered in committee of the whole, and was rejected by a small majority. John M. Scott, of the city of Philadelphia, said this amendment was fully discussed in the committee of the whole. It should be understood, he said, that its effect would he to destroy the Registry Law in the city and county of Philadelphia. Mr. Charles Brown, of the county of Philadelphia, said he knew no reason why the law should be different in one part of the state from what it is in another. The previous question was then called, cutting off the amendment, a,nd was sustained by a vote of 69 to 42, a number of the political friends of Mr. Sterigere and Mr. Brown voting in the majority. Thus the 5th section of the 9th article was left as it stood in the Constitution of 1790, to wit: “ That elections shall be free and equal.” This was no party vote, the relative strength of parties in the Convention being 67 and 66, and should put an end to all argument on the constitutionality of a registry law.
The question of uniformity of regulation was conclusively settled by this vote. The very purpose of the amendment of Mr. Sterigere was to destroy the Registry Law then existing under the identical provision in the Constitution of 1790, that elections shall be free and equal. This purpose was brought directly to view by Mr. Scott, and the Convention by this vote decided against uniformity of regulation and against imposing restrictions upon the legislative power.
Last year the question upon the power of the legislature to pass a registry law was brought before this court in the case of Page et al. v. Allen et al., 8 P. F. Smith 338, and a majority of the court (composed of Justices Strong, Read and myself), held that the power existed; but Justice Strong thought the Act of 1868 unconstitutional in a single but essential particular, by requiring proof of a residence in the district longer than the constitutional period of ten days. That law was therefore held to be unconstitutional by a majority, Justice Read and I dissenting. The decision, therefore, has no bearing on the general question.
But is there a necessity for local legislation requiring provisions adapted to the city of Philadelphia, not suitable to other parts of the state ? If not, why is a city charter granted with all its large powers^ of local government, its special provisions for police and for conduct ? Where population greatly abounds vice and virtue have their greatest extremes. A simple rural population needs no night police, and no lock-up. Rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses, and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes of imported bullies and vagabonds, and to cast them multiplied upon the polls as voters. In large cities such things exist, and its proper population therefore needs greater protection, and local legislation must come to their relief. The freedom and equality of the ballot-box must be protected from the local causes which mar and destroy a free and equal election. What crime have the freemen of Philadelphia committed, that their voice at the ballot-box may be stifled by the fraud or force which springs out of their local circumstances, and yet the legislature be powerless to relieve them ? In the language of another, that would be “ to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man — on a level with the industrious, the poor and the rich.” Is that a wise and just interpretation of the Constitution which opens the polls of a large city to such imported hirelings and vagabonds without a home, by adhering to a uniformity of regulation unsuited to the city on the one hand, or to the country on the other ? Is the Constitution of Pennsylvania so deformed and sterile that her laws cannot protect the ballot-box of a city from falsehood and fraud because they admit of but one unbroken system for the state ? Such an interpretation of the Constitution is wanting in merit, and can only operate as an incentive to fraud. How then can the freedom and equality of election be secured in a great city if from the force of local circumstances the places of the real electors are usurped, if the ballot-box can be stuffed with impunity, or if suffrage can be exercised only at the risk of violence or life ?
Thus the ground on which this case was placed at Nisi Prius is swept away, the postulate of the learned judge being that uniformity of regulation throughout the state is a demand of the Constitution, as the equivalent of equality of election. But when it is shown that the Constitution nowhere demands uniform regulations, and, on the contrary, that the very equality of elections demands a difference in regulation to overcome the obstacles to
When the legislature possesses an undoubted authority to regulate, such as in this case, its discretion is not the subject of review. This is expressed by Black, C. J., in Sharpless v. Philadelphia, 9 Harris 147, in these words: “ There is another rule which must govern in cases like this; namely, that we can declare an Act of Assembly void only when it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds. This principle is asserted by judges of every grade, both in the Federal and in the state courts; and by some of them it is expressed with much solemnity of language.” He refers then to 6 Cranch 87; 4 Dall. 14; 18 S. & R. 178; 12 Id. 389; 4 Binn. 123. See also the opinion of Sharswood, J., in Commonwealth v. Green, 8 P. F. Smith 226.
We come now to the question, What provisions of this law for the regulation of the city elections, if any, are subversive of the rights of city electors ? The number of these objected to is few, after having disposed of the difference between city and state regulations. Much stress has been laid on the right of the people to elect the officers of the elections; and much said upon popular rights which might well be addressed to the legislature in making or reforming the law. But, unfortunately for the argument, the people have by their Constitution disposed of all such appeals when addressed to us. What clause of the Constitution forbids the officers of the election, the canvassers, or even the assessors, to be appointed by a board constituted by law, whether it he a board of aldermen or a board of commissioners ? Let the Constitution itself answer, Art. 6 and 8: “ All officers whose election or appointment is not provided for in this Constitution shall be elected or appointed as shall be directed by law.” Here there is a law made under the direct sanction of the people themselves, expressly given in the Constitution. But it is said the law is unconstitutional because the hoard of appointment in this case (the aldermen) have a majority in it of persons belonging to a particular political party, and the argument omitted to say a
But clearly it is not unconstitutional and not unfair to designate a board of gentlemen chosen by the people to administer the laws among them. If these men be unfit agents it is not the fault of the legislature, but of a people who will elect such men to administer justice to themselves. The law binds the board of aldermen to appoint the officers of the election, so that the political party having a majority in the election division shall have a majority of the board. It requires the canvassers to be appointed so that each party will be represented in the several boards of canvassers, adding a supervising power in the courts to correct errors. What fair mind can pronounce this an abuse of legislative power, so gross, so palpable and so plain as to become an unconstitutional act? Said Chief Justice Marshall: “All power may be abused, and if the fear of its abuse is to constitute an argument against its existence, it might be urged against the existence of that which is universally acknowledged, and which is indispensable to general safety:” Brown v. Maryland, 12 Wheat. 441. The argument that the aldermen being judicial officers cannot be compelled to act, is of no weight, and was so regarded by the whole court in Page et al. v. Allen et al., decided last year. The position would overturn our own acts as judges in the appointment of prison, penitentiary and building inspectors, commissioners to take testimony and other officers. The practice is sanctioned by a century of use. The lower courts fill all vacancies in county and township offices, such as commissioners, auditors, surveyors, district attorneys, constables, supervisors and overseers of the poor. The associate judges constituted a part of the military boards under the bounty and provision laws, and the boards for the revision of taxes; and the judges of the judicial districts appointed the revenue commissioners. Besides the aldermen have not refused, and it is not likely they will refuse, and what authority have these plaintiffs to gainsay their right to act, or to put in a refusal on their behalf? The truth is the whole weight of this objection consists in the fact that the majority of the board, representing the popular majority, hold opposite opinions to the plaintiffs, and when a new deal of the popular cards turns up a different majority, I suppose gentlemen of the opposite party will use the same argument.
The next objection urged, with equal, and perhaps greater
The alleged double taxation scarcely deserves notice. The system of annual taxation has marked the whole history-of the government. He whose name is on the annual list to whom a tax is assessed, is clearly not. to be listed a second time for taxation. He is to be listed for the election. The first list of electors is to be made before the 1st of June, and being made by the same officers is evidently intended to be made in connection with the original assessment. If an elector has been already taxed, his tax will be transferred to the list of electors, if not, the tax will then be assessed in order to perfect his qualification as a voter.
It is argued that the provision of this act which requires the assessors to omit from their lists all boarders at hotels, taverns, sailors’ boarding-houses an<J restaurants, and all persons not qualified electors having a fixed residence in the division, is unconstitutional. It is said that a large class of electors is thus excluded from the list. This is a palpable error. The law forbids the assessors to take down the names of such persons, to prevent the frauds known to result from taking down lists of persons given in as boarders, when no such persons are residing at the hotel or boarding-house. But it nowhere forbids these omitted persons from being placed on the registry at the proper time, and on proper evidence. On the contrary, a mode is provided to enable every lawful elector to be registered, by application to the assessors or to the canvassers. Clearly the feature complained of is a useful provision to protect the rights of the true electors of Philadelphia, and to reach the unqualified persons found at such convenient places just upon the eve of an election, when their votes are needed by unscrupulous men. Its purpose is to exclude this fraudulent. element, by compelling all persons not known householders and fixed inhabitants to come personally before the proper board and make proof of their right. True, the omission demands of single men, clerks, journeymen and transient boarders, a greater vigilance to secure their suffrage. But the demand is not imposed by the law, but by the necessity which required it, in order to protect them and all other honest electors from being supplanted by fraudulent voters.
What clause of the Constitution forbids this power to be exercised according to the exigency of the circumstances ? Where the population of a locality is constantly changing, and men are often unknown to their next-door neighbors; where a large number is floating upon the rivers and the sea, going and returning and incapable of identification; where low inns, restaurants and boarding-houses constantly afford the means of fraudulent additions to the lists -of voters, what rule of sound reason or of constitutional law forbids the legislature from providing a means to distinguish the honest people of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights ? I cannot understand the reasoning which would deny to the legislature this essential power to define the evidence which is necessary to distinguish the false from the true. The logic which disputes the power to prohibit masqueraders in elections, on the ground that it affeets their freedom or equality, must also deny the power to repress the social disorders of a city, because the same Bill of
In connection with this subject another feature is mentioned as a hardship — requiring the proof of residence by two witnesses, who must be householders and electors. But hardship is not the test of the constitutionality of a law. This case is no harder than the law which requires a will to be proven by two witnesses, before a man • can exercise his more precious right of disposing of his property among his children, when he comes to die. Both laws have the same purpose — protection. One would protect electors against fraudulent voters; the other would protect the dying man against a fraudulent will.
Another complaint is made of unconstitutionality, on the ground that the canvassers are required to strike off the list the names of all unqualified persons, if upon due inquiry and investigation they shall find them to be unqualified; but, in the absence of the person, they can only do this on the testimony of at least two reputable citizens, who are private householders. The argument is, that the law is unconstitutional, because the canvassers might abuse their powers. They are not permitted to strike off any qualified voter, and if they do, he has his remedy at law to compel them to restore his name. The canvassers are a legal tribunal established to decide on evidence of qualification, are sworn officers, and are required to proceed in a due and proper mode, and decide on sufficient evidence. ' But a law can be pronounced unconstitutional only when the law itself subverts the true electors’ rights, and not because the tribunal acting under it may make mistakes, or even abuse its functions. All tribunals of every kind could be set aside upon such an argument. The language of Chief Justice Marshall may be again referred to on this point.
Another ground much urged is, that the proper time for the proof of the qualifications of electors is the day of the election, for then only, it is said, the period of residence is complete; and from the nature of the facts this cannot be shown before. Grant it;
But it is unnecessary to discuss this subject at greater length. The want of time to condense the argument has made this opinion already too long. Enough has been said to show that free and equal elections are the true end to be secured, and that the system of laws regulating the elections is only the means of securing the end; that this system of regulation is the subject of legislation over which the legislature exercises a sound discretion; that no clause in the Constitution requires uniformity of regulation, or' prohibits legislation according to the obstacles which different localities present to prevent' a free and equal election; and that it is a mistake to substitute uniformity of regulation, for the free and equal election which it is the object of regulation to secure. We have also shown that none of the features of this law subvert the rights of the true electors of this city, and that is the only test of the constitutionality of any provision contained in the law.
It is true there is a kind of liberty this registry law will destroy. It is that licentiousness, that adulterous freedom; which surrenders the polls to hirelings and vagabonds, outcasts from home and honest industry; men without citizenship or a stake in the government ; men who will commit perjury, violence and murder itself.
The decree of the Court of Nisi Prius is reversed, the special injunction dissolved, and the case remanded for further proceedings.
[At the time of writing the foregoing opinion, the court had not been referred to the Debates on the Registry Law in the Convention of 1837. Indeed it was stated in argument, that the debates in committee of the whole were not published. Since then the following information has been supplied. The amendment of Mr. Sterigere, referred to in the opinion, was presented to the report on the 3d article, when in committee of the whole, and not to the report on the 9th article. It will be found on the 29tli page of the 3d vol. Debates of Convention; and was afterwards divided, leaving the" question on the 2d clause in 'these Words (see page 57): “ The election laws shall be equal throughout the state, and no greater or other restrictions shall be imposed on the electors in any city, county or district, than are imposed on the electors of every other city, county or district.” The vote on this branch stood 49 to 67 (see page 81); and the amendment was therefore disagreed to. The debate on the registry question occupies fifty-two pages, and the constitutionality of such a law was fully discussed by some of the ablest men in the convention. The vote against the amendment was therefore most decisive; and hence but little was said when Mr. Sterigere offered it again on the second reading of the report on the 9th article, and it was suffered to fall by the call of the previous question.]
Dissenting Opinion
Dissenting opinion by
Not being able to concur in the opinion expressed by the majority of the bench, that the Act of Assembly, known as the Registry Act, approved April 17th 1869, is constitutional, respect for them, and duty to the public, require a statement of some, at least, of the reasons which have compelled me to dissent from that opinion. This I will do as succinctly as possible.
It is an axiom with us, in this country, that all governmental power is primarily in the people; that laws are enacted only to
Of this nature are the provisions of the Constitution of this Commonwealth relative to elections by the people. It is there declared in affirmative and most explicit terms, who shall enjoy the rights of electors, and on what terms. No power, therefore, short of the people themselves, acting directly on these provisions, can detract from the rights declared, or add a syllable to the qualifications agreed therein to be essential to their enjoyment. To attempt such a thing would be an effort at usurpation; its success, an overthrow of the Constitution itself. No one will disagree with the affirmation, that if the right of elections by the people, secured in the Constitution, be subject to legislative restriction or limitation, as times change and parties dominate, there will remain but little of the Constitution worth preserving.
Nor is it to be maintained that because an assault on a right avoids the boldness and effrontery of directness, it may be regarded as harmless and justified, because based upon an assumption of morality. Even although it might not be intended, it is an insidious mode of attack, and all the more dangerous. Better an open enemy than a secret foe; that an assault should be open than covert. I desire to deal, however, not so much with intention, although apparent enough for the passage of the law under consideration, as with its effect and operation on the equality and freedom of elections.
It may be safely assumed that whatever embarrasses or renders difficult of enjoyment an undoubted right, just so far it impairs the right itself. To speak without circumlocution, and to the point under consideration, it seems to me an incontrovertible position, ..that whatever legislation embarrasses and renders more difficult than is requisite to its enjoyment, the right of an elector to vote, impairs the right itself, and as a consequence is a violation of the provisions of the Constitution on the subject. This is the doctrine of this court as expressed in The Commonwealth v. Maxwell, 3 Casey 444, wherein it was said, “ A law intended to take away, or unnecessarily postpone or embarrass the right of election,
A right surrounded by such details, requirements and difficulties as to embarrass its enjoyment at every step, is hardly to be regarded as a right at all. It is more properly characterized as a chance for the enjoyment of the specific right. In my judgment, after a most sedulous effort to master and comprehend its details, that is just the nature and character of the right pertaining to a large body of electors in the city of Philadelphia, under the Registry Act. Learned professors of the law may possibly master its numerous and involved details; the masses never can thread its mazes, unless furnished by some friendly hand with a clue to lead them through and out of the labyrinth. One would naturally expect plain provisions in aid of the enjoyment of a plain right, if that were the purpose of the enactment on the subject.
This, act was undoubtedly intended to render the exercise of the right of voting by the electors of this city, more difficult than under the Election Law of 1839, a law, under the provisions of which the people contentedly voted for thirty years, and for the repeal of which, so far as appears by the journals of the last legislature, not a petition emanating from the people was presented. The professed, and possibly the real object of the law, was to prevent fraud in elections by voters. If this was the view of the framer of the act, I must in charity believe that it so engrossed his attention, as to lead to forgetfulness that among the barriers so ingeniously contrived to. prevent it, the defeat of the duly qualified voters must inevitably occur. A remedy for a disease must be regarded as empirical, which would only eradicate it by producing a worse. If frauds were imminent by simulated voters, let penalties be provided for the rogues, and set honest and vigilant men to watch them, but let not the rights of honest voters be sacrificed to these apprehensions. If such were the principle of legislative action on the question of a preventive remedy, assuredly the fewer votes there should be allowed to be polled, the more the danger of fraud in voting would be diminished, and it might be entirely prevented if no voting whatever were allowed. To this absurd result, the principle necessarily leads.
But I have shown, I think, that to embarrass a voter in the enjoyment of his right, impairs the right itself, and is against the constitutional grant of it. That this act does so in the case of a large class of voters, we have it conceded by the learned opinion
Hardship is thus admitted to exist as to the class of voters mentioned.
But why should they be subject to greater hardships in the enjoyment of their rights than others? Why not subject all alike to the simple process allowed by law, as in other cases, to establish their rights when they offer to vote ? The Constitution confers a perfect equality of rights on all citizens of competent age and qualification to exercise the rights of electors. Is this to' be set aside by an assumption of frauds practised, even if the fact be undoubted ? Certainly not, or honest men might lose their rights because rogues exist. But the reasoning based on the assumption, like the law, in this case, is applicable only to Philadelphia. The assumption must be that there are no rogues in the other cities of the state, or in the country districts; if this be not so, the act is simply a discrimination to cut down the voting population of Philadelphia. Such an assumption would be absurd, as the foundation for legislative action. Fraudulent voters are to be found in these cities, and in the country, as well as in Philadelphia. Why then impose the “ hardship” and require vigilance,” in order to enjoy a right common in origin and extent to all, on voters in the city ? I hold that hardship, which is another term for embarrassment, in the enjoyment of the rights of an elector, imposed by law, impairs the right and is inadmissible, as the result of legislation, even if co-extensive with the state; but when there is superadded to this embarrassment of city voters, inequality in the manner of the enjoyment of the right between them and other citizens of the state, the character of the act seems to go beyond an interference with rights simply, and to reach to an attack upon their liberties.
Neither .during the argument, nor upon reflection since, have I been able to discover wherein the idea of these inequalities is deducible from the Constitution, or how one class of citizens in a particular locality in this Commonwealth, shall not enjoy a grant of a right to all sections and to all citizens possessing the same qualifications without distinction of qualification, and be constitutionally subjected to different laws, imposing hardships on it not imposed on all! The plain words of the Constitution teach perfect equality, so far as the law is concerned, in regard to rights established by it. It is to be read and understood according to its words, in their usual and ordinary sense, said Gibson, C. J., in Monongahela Navigation Company v. Coons, 6 W. & S. 101,
It has been argued that inequalities are necessarily incident to the exercise of the rights of the electors. And those of the locality of the voters, and differences in the time of opening and closing the polls in some places from others, and differences in laws creating election districts, have been referred to. I need not spend time in showing that such diversities, partly natural, and where otherwise, the result of laws asked for by the electors themselves, or not complained of, are not parallel to the case where the actual right of voting is infringed — impaired, and to a large extent rendered impossible by law, as will be shown in the case under the law in question. But even in regard to some of those regulations, cited as illustrative of the argument, if they should have the effect to defeat, or greatly embarrass the right, and so intended, no matter on what pretext, or for what purpose, they would be unconstitutional and void. If, for instance, but a half an hour, or an hour, were in populous districts only allowed to electors to deposit their votes; or the places selected for the purpose were such as to be a virtual denial to all but the vigilant and vigorous to exercise the right of electors, would anybody doubt the invalidity of the legislation which should sanction such things ?
The Constitution of our Commonwealth is an inviolable charter of equality of rights to all in the exercise of every right established by it, and there is not a shadow of an implication that it was not so intended in regard to the rights of electors. Read it. It says: “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in the state one year, and in the election district where he offers 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
Now it is an elementary principle of law, that all general statutes operate equally on all persons or things embraced by their terms, within the jurisdiction of the law-making power, where there are no restrictions or limitations contained in them. Shall the Constitution have a different construction ? Shall limitations be implied, which import possible inequalities among the people themselves in an instrument, the purpose of which was to guard against any such thing ? The most skilful casuist will search in vain for a reason which would be satisfactory, why the people should intend that the legislative body, created' by themselves, to act in obedience to the Constitution, should have the power to diversify the enjoyment of their guaranteed, uniform rights, especially the right of suffrage, the corner-stone of the government, or render the enjoyment of it contingent, uncertain or hurthensome, to any of the classes upon whom it was conferred. The grant being identical to all qualified to exercise it, and without restrictions imposed on any, not imposed on all the classes enumerated, it seems to me it would be a palpable perversion of the rule to hold that the Constitution sanctions legislation establishing a different, or changing the rule established by itself. The clause quoted establishes a uniform rule throughout the Commonwealth, and commands that every citizen possessing the qualifications mentioned— no more, no less — “ shall enjoy the rights of electors.” This is the rule of the Constitution. Can the legislature say that the electors may be subjected to a different rule? This would overthrow the rule. That this is the effect and result of the maintenance of this registry act, as between different portions of the Commonwealth, as well as citizens, my brother Sharswood has shown most conclusively in his opinion in the case at Nisi Prius, to which nothing could be added to strengthen the argument. Indeed, so conclusive was its reasoning regarded, that it wrung assent to its doctrines from unwilling quarters, if party predilections may be considered. A majority of my brethren, however, have discarded the uniformity and universality of what we claim as the rule of the Constitution, and have accorded an omnipotence to the legislative power equal to changing it, and establishing another and different rule, one which subverts both the uniformity and equality of the Constitution. The evils of such a conclusion I fear will not end with the partial legislation contained in the act. It will be a precedent for other legislation of the same character, and in time the electors of one county may be subject to terms of registration infinitely more embarrassing and onerous than those of another, by which virtual disfranchisement may ensue to many electors, otherwise entitled to enjoy the right.
We have been admonished in the opinion of the court that
It seems to have been assumed by the draftsmen of this bill, and adopted in the opinion of the majority, that there is something of a lower degree of morality in the city of Philadelphia than in other cities of the state, which justifies a different rule in regard to its electors, and requires them to be more closely scrutinized in the exercise of their rights. “ Clearly,” says the opinion, “the feature complained of” (the difference between the rules for registration in the city and country) “is a useful provision to protect the rights of the true electors of Philadelphia, and to reach the unqualified persons found at such convenient places just upon the eve of an election, when votes are needed by unscrupulous men. Its purpose is to exclude the fraudulent element * * * in order to protect other honest electors from being supplanted by fraudulent voters. What clause of the Constitution forbids the power to be exercised according to the exigencies of the 'circumstances” * * * * “Where low inns, restaurants and boardinghouses constantly afford the means of fraudulent additions to the list of voters, what rule of sound reason or constitutional law forbids the legislature from providing a means to distinguish the honest men of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights ?” This assumption is thus, at least apparently, the justification of this act.
It would seem, therefore, only necessary to assume a want of morality in a particular district, to justify the legislature in dealing with that locality, so as to embarrass the rights of its electors, and impede the exercise of them to any extent which may be thought necessary, in order to distinguish the “honest citizens from the rogues.” It will be a sad day in this Commonwealth
It is claimed that this legislation is a regulation of the exercise of the constitutional right of suffrage. It is a perversion, it seems to me, of the right to regulate, to carry it to the extent we have here, of virtually destroying, p,t least impairing, the rights professed to be regulated. A regulation must necessarily be subservient to, and in aid of, the thing regulated. An elector is not surely to be deprived of his right by a regulation; this would constitute the regulation superior to the right. The order of things would thus be inverted. Chief Justice Chase has lately expressed the true idea on this point, in The State of Texas v. White, Am. L. Reg. 1869, p. 765, namely, that the means necessary to execute a power must be only such as are necessary and proper for carrying into execution the power conferred.
The difference in the requirements under this act, in order to enjoy the rights of an elector in Philadelphia, and the same rights in other portions of the Commonwealth, does not stand on the power to regulate. The reference I have made to the opinion of the majority, it seems to me, admits this, and shows that the object is exclusion, by restricting, under pretence of excluding fraudulent votes. I have shown that so far as regulations embarrass and interfere with the enjoyment of the rights of an elector, it is an infringement of his constitutional right, and void. This must be so, for if the legislature may, to any extent, interfere with the right, it has no limit but legislative will, if the Constitution be impotent to protect; and the more uncertain will the right become, in proportion as party spirit intensifies the fears of the party which happens to be in power, that its opponents are about to overthrow it. The assumption of the fact of instances of fraudulent voting (and it seems it needs no more solid foundation), may be made the foundation to increase the requirements to be registered, and consequently impose difficulties in the way of voting, so as to render it in a great measure impossible. That is what legislation, like that we are considering, will be sure to lead to. Year after year, different and more complicated regulations may be required in particular localities, until the right becomes virtually abolished.
We will now for a moment recur to the operations of the Registry Act in Philadelphia, compared with its operations in the country, and in the other cities of the state, and in this examination it cannot fail to be seen how different are the terms on which the constitutional voter exercises rights in the former and in the latter.
Outside of the limits of the city, the assessors furnish the list of voters, and return indiscriminately the names of all whom
In the city, the assessors are' allowed only to return, on their own knowledge, qualified householders, and persons residing therewith, and qualified electors keeping inns or hotels, sailors’ boarding-houses, and restaurants, but are prohibited from entering upon their lists the names of any qualified elector or other person who might be qualified, who happen to board at either of these places, or the name of any qualified elector who has not a fixed residence.
Electors who happen not to be householders, but only boarders, can be assessed only’on making personal application to the assessors of the ward, before the 20th of September in each year, at the time appointed by the board of aldermen for making extra assessments, and then on proof by two qualified electors of the division, that is to say, by two electors of the class of registered householders, or hotel, or sailor boarding-house, or restaurant keepers, that the applicant is a resident of the division, and if required by any of the assessors, these witnesses must state that “ they verily believe the applicant will he a qualified voter at the next general election.” This is in disregard of the decision of this court last year, that such proof cannot be required before election day, and is a qualification required by this act to be proved, notwithstanding it is in anticipation of the time of voting.
In addition to the proof by the special witnesses, the applicant is required, in effect, to give to the assessors a synoptical history of his life. He must state, under oath, his age, where born, place of residence, occupation, number of the house’where he boards, how long he has resided in the state, the date of the commencement of such residence, what election district he claims to be assessed in, and “ that he now resides in the city of Philadelphia, and that he has no other place of residence, and that he did not remove to the said election division for the purpose of voting therein, but for the purpose of making it his place of residence.”
After all this has been embodied in the certificate contained in the act, being a form for all cases, a tax of fifty cents is to be assessed on the applicant, without any reference to the fact of prior assessments which may have been made the same year upon the property of the applicant, or of taxes paid by him; and being furnished with the certificate, according to form, signed by the assessors, he may present it to the receiver of taxes, and on paying the sum therein assessed upon him, he is then entitled to a special receipt from him, reciting the assessor’s action' in his case. Having gone through all this, the applicant is supposed to be assessed and a qualified voter, unless the canvassers strike out
This is but a sketch of the process through which the non-householder in Philadelphia must go. Who can imagine the annoyances and difficulties which will be actually encountered in passing through such an ordeal ? The uncertainty of results and contingencies of enjoying the right after all, leave it but the shadow of a right; a chance in many opposing chances, to vote! It would be an impeachment of common sense to argue that there is not here a most flagrant discrepancy and embarrassment created by law between the citizens of this Commonwealth in the enjoyment of the right of electors. In the country districts, proof of residence can be made by any single qualified elector, whether a householder or not; in the city, two are required, and they must be householders ! As if truth were truth only from the mouths of this privileged class!
I may admit, however, without injury to my position, that it may not have been intended by this act to impugn the moral character of the class of electors who are neither householders, hotel, restaurant and sailor boarding-house keepers, by constituting the latter exclusively the witnesses to prove residence in order to put an applicant on the extra assessment lists. That was perhaps not the object. The object was to render the proof of residence more difficult! No reason but this can be assigned. No man, however clear his right, can be assessed at the extra assessment, if proof of residence be demanded, as it will always be sure to be; indeed, as required, if I comprehend the law, unless personally known to the privileged class of witnesses, viz.: householders,' innkeepers, restaurant and sailor hoarding-house keepers of the division. The fewer persons known by them the fewer names will be found on the lists. If one witness were competent to establish the fact in each case, nearly all applicants might possibly be registered, but two must know the applicant’s residence. Even then, how are the applicants to compel the attendance of these important witnesses? There is no provision to compel it; no subpoena is authorized to be issued, and no power given to punish for contempt in disobeying it, if it were issued. It is in every feature a scheme to prevent registration, and by this means to deny to the citizens of Philadelphia the enjoyment of the rights of electors which the Constitution has said they shall enjoy, and which are enjoyed elsewhere. Age, residence, taxation, and every qualification may be perfect, but unless the two qualified witnesses voluntarily appear to attest to. the residence of the applicant he cannot be registered, and he cannot vote at the polls. This is truly an- uncertain tenure upon which this great right is made to depend.
With a prescience that seems to have foreseen designs and
“ That .elections shall be free and equal Art. 9, sec. 5, Constitution.
Of this provision, as well as of the other provisions in the Bill of Rights, sec. 26 of the Constitution provides that,
“ To guard against transgressions of the high powers which we have delegated, we declare that everything in this article (the Bill of Rights) is excepted out of the general powers of government, and shall EOR ever remain inviolate.”
The declaration “ that elections shall be free and equal” it is said is satisfied by limiting electors to an equality in number of votes that each may give. This position is necessary in order to arrive at another; that inequalities in the exercise of the enjoyment of the right must yield to the power to regulate it. And this leads necessarily to the corollary that every qualified citizen may give the same number of votes as any other individual, provided that regulations, such as registration acts, are not complex enough in requirements to exclude the voter altogether. I submit that such a deduction is inevitable, if regulation may go the length claimed in this act.
I have shown, I think, that all regulations must relieve and operate in aid of the right to be regulated, and whenever they tend to defeat it they are void. I have also shown, I think, and will further show, that this registry act not only embarrasses but tends to defeat the rights of electors altogether in many instances, and that it is discrepant between sections and between individuals. Can it be constitutional? The solemn declaration in the Bill of Rights is nothing if this be its interpretation, and the act in question be a true exponent of it.
But it is claimed that uniformity is not the rule of the Constitution, because an amendment proposed in the Constitutional Convention of 1837-8, “ that the election laws shall be uniform throughout the state, and no greater or other restrictions shall be imposed upon the electors in any city, county or district than is imposed upon the electors of every other city, county or district.”
It is true this amendment was offered, but it is equally true it was never voted on at all by the Convention. It was disposed of by a call of the previous question, which had the effect to cut off all the proposed amendments, and brought the Convention to a direct vote on the section. This was the effect of the previous question under the lex parliamentaria: Cushing’s Law and Prac. of Leg. Assemblies, §§ 1418 and 1526, and was its effect on the amendment in question in the Convention, as appears by the opinion of the majority in this case.
The fact that in 1836 a registry law for Philadelphia was passed and existed for a time, advances the argument for non-uniformity not a step. Whatever there is in the fact that it was passed, is counterbalanced by the fact, that it was in a very short time repealed, and the Act of 1839 passed, by which an entirely uniform system throughout the whole state was established. It was tried long enough, however, to demonstrate its capacity for perpetrating the most frightful frauds on' the rights of electors, and on the results of elections. Many reasons might be given why it was not judicially tested in this court, and among them is the fact that chancery jurisdiction was only, in the same year, conferred on this court, and was new in practice, as it was unsettled in the extent of equity jurisdiction. But it is a feeble inference of its constitutionality that it was not so, tested, considering its brief existence. If there be any force in such an inference, it results from the assumption that what has not been adjudicated upon at all, is to have the same effect as if it had been; an inadmissible conclusion certainly.
The character of uniformity which the Constitution, in ease of qualified electors, requires, is utterly set aside as to one class of them, viz., naturalized citizens.
Everybody knows, or ought to know, that a naturalized foreigner is a citizen, by a law of Congress, and entitled to all the rights of
In the city of Philadelphia, the rule is widely different. No citizen can be assessed later than seventeen days before election day. On the subject of naturalized citizens, the 85th section speaks: “ Every person of foreign birth, claiming a right to be assessed * * * shall, in addition to the proof of residence (by two qualified, i. e., assessed householders), prove that he has been naturalized conformably to the laws of the United States, and as evidence thereof, he shall produce a certificate of naturalization .under the seal of the court in which said naturalization took place, duly attested by the signature of the prothonotary or clerk, in his own proper handwriting; and shall prove by the oath of a qualified elector of the division, that he is the person named in the said certificate, and the person to whom it was issued * * * when and where he was born, and when and where he obtained the said certificate, and from whom, &c.” And no foreigner, having declared his intentions, although entitled to naturalization before election day, can be registered in the city, and consequently cannot vote, although actually naturalized, before that day. There is no provision for the assessment and registration of such, nor any that I can see, for the registration of the sons of naturalized citizens. These two classes, it seems to me, are excluded in the city, although the most conclusive proof might be given of their constitutional qualifications on election day. Citizens of full age, and tax-payers, they may be on that day, yet, as classes, they are utterly excluded from enjoying the right of electors. Notwithstanding all this, we are assured, nay, it is decided, that the act which produces such a result is binding and valid. I do not think so, for my part.
The provisions of this section of the law cannot be read, I think, without the conviction following, that they were incorporated with a view to exclude, as far as possible, foreign born, or naturalized citizens.
How is it possible, it may be asked, for such an applicant for registration, to prove the handwriting of the clerk or prothonotary who signed his certificate ? He may have been a resident of a distant country, or in a different state, and how is he to prove it under such circumstances ? Having proved it, how is he to bring conviction, that the proof is true or sufficient, to the minds of the assessors ? How is he to get the witnesses before them ?
In McCafferty v. Guyer et at, 9 P. F. Smith 109, Strong, J., in delivering the opinion of the court, in speaking of the right of an elector, said: “ It is in the nature of a constitutional grant of privileges that cannot be taken away by any authority known to the government. It involves a prohibition of interference with it.” This was said in what is known as the deserter cases, wherein it was contended that there was no clause in the Constitution prohibiting the legislature from forfeiting an elector’s rights for the cause of desertion mentioned in the act. That legislation was held to be unconstitutional, and other similar attempts, as shown in the opinion, to have from time to time been made, and proved abortive.
But I cannot leave this branch of the subject without noticing the inequality between citizens of foreign birth in the city of Philadelphia and out of it. In this city an unnaturalized citizen cannot be assessed, and if naturalized after the 20th of September, cannot be registered. Out of this city he may be registered if he has filed his declaration of Intention to be naturalized, and may be a voter if naturalized at any time before he offers to vote. Nor is the foreign born citizen obliged to pass through the ordeal of proof noticed, as required in the city, or in any other part of the state; and I see not how sons of naturalized citizens are to be registered in the city; outside of it, the law presents no difficulties. The Bill of Rights is a mockery, which declares that elections shall be free and equal, if such partial legislation be constitutional.
In this class-legislation — it is nothing else — there is an imputation against the morality and integrity of the non-housekeeping and hotel-keeping class as undeserved as unjust.
The presumption of the constitutional provision is in favor of the honesty of all electors alike. But even if true, as it is assumed, the voters of this class are neither to be excluded nor embarrassed. The rights of an elector rest not on any moral, but on a legal status. With the qualifications of the Constitution in his favor, he is not to be excluded on any assumed or even real ground of moral status. The governing power in this country is the people, and it -is made up of all classes. The compact between the people, namely, the Constitution, settled who should be voters, and this was a prohibition against interference with the arrangement. It is idle to say that that is not interfered with, if proofs be demanded of the right, so limited in character, on the assumption of want of morality in a certain class of citizens, as to render the proof itself precarious. That is the effect of restricting the testimony to establish residence to the privileged class noticed, viz., housekeepers, hotel-keepers, restaurant and boarding-house keepers.
Not only will the difficulty of proof deprive many a voter of his right, but inability to comprehend the multiplied requirements through which he must pass in order to be put on the extra assessments, an indispensable preliminary to voting, will defeat more. A little additional complication of details would exclude almost every man from the extra assessment. All boarders, clerks, journeymen, laborers and others not of the privileged class of housekeepers, &c., must get upon the extra assessment lists, if at all, by the kind of testimony and machinery mentioned.
In this country of equal rights, it can hardly be claimed that a statute destructive of an equality created by the Constitution, can be binding. But it is argued that it is so unless expressly prohi
The law in question is an election law, not a tax law. To enjoy the privileges of an elector, the claimant must submit to the imposition of a tax. Small though it be, it is in principle the same as if ten times as large. It is not said that the householding voter must pay it before voting, but it is positively required to be paid by all who may be placed on the extra assessment lists in the city. I presume this number will not fall short of one-tenth of tire voters, and may greatly exceed it. It is the privilege of the elector which is thus taxed; it is a step in the process of registration — which is a preliminary to voting — it is therefore a tax on the right. This is so beyond controversy; for no others than those who claim to be registered are assessed with this tax. The Bill of Rights ordains that elections shall be free and equal. Free on the condition of paying tribute for the enjoyment of the right, says the act. Is a right free which must be paid for ? The tax which the Constitution prescribes was to indicate who should be entitled to be electors; that was sufficient for that purpose— but that is not the purpose of this tax. Its object is to raise money for the city treasury. It is small now, but the principle sustained is capable of indefinite extension. Fifty cents is the limit this year, five or ten dollars will not be distinguishable in principle next. It is this year applicable to Philadelphia, next it may become a tax on Lancaster or Pittsburg, and Philadelphia be exempt. Yagrant — its inflictions will be feltjwherever party impulse may choose to send it.
Constitutional rights are inviolable from all quarters, whether by the embarrassing operations of tax bills or otherwise. This was intended to be the use of the Bill of Rights, and it places all rights declared, on the same footing. What would be said of a tax upon the exercise of the right to worship Grod according to the dictates of conscience, or on the right of trial by jury ? They stand on no higher or other grounds than do the rights of an elector. If the one may be taxed may not the other ? It would shock the sense of the entire community to think of such a thing
There is another feature, that my brother Sharswood has shown, beyond cavil, to conflict with the Constitution. That is the last period fixed by the act for assessments in Philadelphia. Some years it will be twenty-three days between the 20th of September and the second Tuesday of October, and never less than seventeen. The Constitution fixes the outside limit ten days before the election. The tax must be assessed at least ten days before the election, says the Constitution. It shall not be, says the act. Which shall prevail; or, in the face of the decision pronounced, I ought rather to ask, which ought- to prevail ? Can any one hesitate to answer ?
A reason is given for sustaining this law, which to me is novel indeed, and directly overrules what this court determined last year, in the registry case then before us, viz.: that the repealing clause will stand, and all election laws we have will be repealed, if the act in question be held to be invalid. The repealing clause only has effect if the act to which it belongs be valid. It is predicated of the validity of the substituted provisions. I will not argue a proposition so self-evident. Wherever it is parcel of a substituted act, it lives or dies with the body of which it is part.
But I forbear further remarks. This opinion is far too long. It is written in the sole hope that the people will vindicate their Constitution in due time; if not, conviction of duty must be my apology for the length of it, as it has been my support in the labor necessary to produce it. I am of opinion that the decree made at Nisi Prius in this case ought to be affirmed, and the appeal dismissed.
Dissenting Opinion
Dissenting opinion by
— After the benefit of a very full argument, which I did not have at Nisi Prius, and after the most careful reflection, my opinion that the Act of April 17th 1869, Pamph. L. 49, is unconstitutional, remains unchanged. Nor does anything which has been brought forward seem to me to require notice ; especially after the dissenting opinion by the Chief Justice, except, perhaps, one ground which has been very largely and principally insisted on. I refer to the alleged decision of the Reform Convention of 1837. Indeed, it is now declared that their vote on the subject “should put an end to all argument on the constitutionality of a registry law.” I cannot so regard it. It was, in truth, no decision at all. A vote sustaining a call for the previous question, speaks nothing as to the merits of any amendment
But if the vote in the Reform Convention had been a direct declaratory one that such a registry act as that of 1869 would be constitutional, I would not be willing to accept it as conclusive. I cannot agree that any authority whatever belongs to the opinions of that or any other convention on the meaning of an instrument which they have met to amend. It is enough to say that their opinion on this subject was not incorporated with the amendments which were submitted to and ratified by the people. The people did not adopt all the votes and debates of the Reform Convention, but such only as were embodied and exjoressed in the amendments submitted. In construing the Constitution as the act of the people, we must look at it as it came from their hands. Such certainly was the view taken by the majority of this court in Shollenberger v. Brinton, 2 P. F. Smith 9. In that case, on the question of the constitutionality of the Act of Congress making treasury notes a legal tender, it was strongly urged that the Federal Convention of 1787 had by a direct vote struck out the clause in the Articles of Confederation empowering Congress “to emit bills of credit.” Yet that vote is not referred to in the opinion of the majority. In truth all that can be said of such votes in deliberative bodies, whether constitutional or legislative, is, that they are what logicians term, argumenta ad verecundiam. Their weight depends upon'the character of the men who give the votes. While I feel great respect for the members of the Reform Convention of 1837, I am not prepared to hold that their opinions upon the construction of the Constitution of 1790 are conclusive; more especially
