197 Ky. 1 | Ky. Ct. App. | 1922
Lead Opinion
Opinion by Chief
Granting interlocutory injunction.
In this action -which is pending in the above styled circuit court, a motion was made before the judge of that court to grant ah interlocutory injunction to restrain the members of the election commission and the clerk of the county court from putting into operation the provisions of chapter 138, Session Acts, 1922, or exercising any of the duties imposed upon them under that chapter, which is ordinarily called the Registration Law. The injunction was denied, and plaintiff has submitted it to me, under tbe provisions of sections 296 and 297 bf the Civil Code, with a motion to grant such an injunction and to direct the circuit court or judge to order such an injunction. The motion is based upon the contention that the act is void, because the manner of its enactment did not conform to the provisions of the Constitution upon the subject of the enactment of legislation; and further, that its requirements are contrary to other provisions of the Constitution which render it void. The first ob
(a) It is admitted that the General Assembly in the' enactment of the act conformed to all the requirements of Section 56 of the Constitution, which prescribes the manner of enacting a statute, and the steps necessary up to the time of its preséntation to the Governor for his approval or disapproval. The enrolled bill was signed' by the presiding officers of the Senate and House, and-’ presented to the Governor. The Governor declined to approve or sign the bill and returned it to the House in which it originated with his objections. The objections were entered upon the journal, and the bill reconsidered. The same proceedings were had in the other House, when it was transmitted to it. Upon the reconsideration a majority of the membership of each House, by a yea and nay vote, which was entered upon the journals of each House, respectively, agreed to pass the bill, the objections of the Governor to the contrary notwithstanding. No endorsement was made upon the enrolled bill, nor signed by the presiding officer of either House, to the effect that the bill had been passed over the Governor’s veto, and this, plaintiff insists, must have been done to make it a valid measure. It is well established in this jurisdiction that when an enrolled bill has been attested ' by the presiding officers of each House, respectively, as Section 56 of the Constitution requires, it will be ae-. cep'ted by the courts as the actual bill which was passed, and the courts will not go behind that certification to determine whether all the requirements of the constitution have been complied with in the passage of the bill, nor will they look to the entries in the journals to determine that fact, nor allow such entries to overthrow the presumption that the steps taken in the passage of the bill were regular and in conformity to the constitutional requirements. The reason for this exclusive presumption in favor of the regularity of the passage of the bill from the attestation of the presiding officers of the two Houses, is that a bill when made ready to be presented to the Governor must have the certificates of the presiding officers of the two Houses of the Assembly upon it, and the courts will not go behind this certification to consider the regularity of its passage, out of regard to the equality of the legislative branch of the government with that of the judiciary. Duncan v. Combs,
The Constitution of Indiana contains provisions similar to sections 56 and 88 of our Constitution, and the Supreme Court of that state having before it a similar question to the one here raised, said:
“If the Constitution required an attestation by the presiding officers after its passage over the Governor’s objections, as it does in the case of an original passage of bills before presentation to the Governor, then such certificate would be proper and conclusive evidence of the passage, but as we have stated vetoed bills are not required to be so certified, and there is no record or evi-. dence' of such passage required to be kept, except the journals of the two Houses.” The Constitution of that state like ours provides that in a case of a vetoed bill being passed over the veto of the Governor, in the manner
(b) Section 10 of the act provides for the appointment of two purgators by the election commissioners, whose duties it shall be to investigate the right to vote of any person who is registered, and whose right to vote is challenged, and after notice to the voter, to hear such evidence as may be offered, and if they agree, that such person is not a legal voter to strike his name from the registration book. The plaintiff insists that this section is violative of section 135 of the Constitution, which provides that: “No courts save those provided for in this Constitution shall be established. V This contention I do not think is tenable. Although the purgators may agree that the person is illegally registered and not entitled to vote, this conclusion of theirs does not deprive the person of the right of suffrage. The statute provides that he may appeal to the circuit judge, and the decision of that judge shall be controlling in the matter. If the purgators disagree in opinion, the case of the voter is •certified to the circuit clerk, who, after the voter is summoned to answer the charge of being illegally upon the registration book, assigns the action to a circuit judge, who 'must decide the controversy, and the name of the person is retained upon the registration book as a voter, or stricken therefrom as the judge decides. If the name of a person is stricken from the register by the purgators, and he fails tó appeal, it is an agreement between the purgators and the person that the latter is not a legal voter, and amounts to no more than an arbitration. The purgators do not perform a judicial function, and their body is not a court in the sense of the Constitution, but is an agency created by the legislature to assist the courts in the gathering of facts, and the disposition of such matters as about which the parties- may agree, but they cannot eliminate any voter from the registration list, except by agreement. Green v. Caldwell, 170 Ky. 571; L. & N. R. Co. v. Greenbrier Distillery Co. 170 Ky. 786.
(d) It is further contended that the act is unconstitutional, because it prescribes qualifications of voters in addition to and other than those prescribed by the Constitution. If the contention is sound, the act, as a matter of course, can not be upheld. Section 145 of the Constitution prescribes the qualifications of a voter to be a citizeii of the United- States of the age of ’twenty-one years, who has resided in the state for one year, in the county for six months, and in the precinct in which he purposes to vote for sixty days preceding the election, subject to certain exceptions which need not be mentioned. These, however, are not all the qualifications which the Constitution prescribes under certain conditions. Section 147 of that instrument provides that: “The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more; and may provide by general law for the registration of other voters in the state. Where registration is required, only persons registered shall have the right to vote. The mode of registration shall be prescribed by the General Assembly.”
The latter section of the Constitution having invested the legislature with power to require the registration of all voters and the mode of the registration, and explicitly provides that where registration is required ‘ ‘ only persons registered shall have the right to vote, ’ ’ it is clear, that if registration is provided for by law which is not obnoxious to the Constitution, a qualification is added to the voter which is not necessary for him to have where registration is not required. Hence if the act assailed is not invalid, because violative of a constitutional guaranty regarding the right of suffrage, and while it does not add to the voters outside of the area where the Constitution mandatorily requires registration another qual
(e) It is insisted, however, that, the act is in violation of section 6 of the Constitution which provides that: “All elections shall be free and equal.”
This is a constitutional guarantee-to the citizen that if he is a legal voter, he can freely vote for whom or for what he may choose and that his vote shall be equal in effect to the vote of any other citizen. Sections 145, 147 and 6, "supra, must be construed together and in so doing it is manifest that the legislature in enacting registration laws, under section 147, supra, has not the power to enact such a law as will add to the voter a qualification necessary to exercise the right of suffrage in addition to the qualifications prescribed by sections 145 and 147, supra, or to cut off the voter from the ballot box without fault on his part, or prevent his vote from being equal to that of any other citizen as guaranteed him by section 6, supra. A. few courts in states where the Constitutions were silent upon the subject of registration but where they prescribed the qualifications of voters,have held that any kind of law requiring registration was invalid, because if the law prohibited any one from voting, who was otherwise qualified, that it added an additional qualification to the right of suffrage other than the Constitution required, and was therefore inconsistent with it, but the great majority of the courts, even where there was no constitutional provision permitting it, have held where the constitution did not prohibit it, that the legislature possessed the power in the exercise of its rights to regulate elections to provide for a registration of the voters, previous to an election, for the purpose of having it determined who the legal voters were, and as a preventative to fraudulent and illegal voting; holding that the prevention of illegal voting was but putting into effect the provision of almost every Constitution in relation to free and equal elections. In such cases the registration does not require any qualification of the voter other than that already held by. him, but is merely a regulation of the exercise of the right of suffrage. Such.power was exercised by our legislature under the Constitution of 1850, which was silent upon the subject of registration. Owensboro v. Hickman, 90 Ky. 629; Commth. v. McClelland, 83 Ky. 686. The precedents in the various juris
“Under pretense of regulating such procedure no person can be precluded or hindered from the complete enjoyment of his rights as guaranteed to him by the Constitution of the State or of the United States.” In People, etc. Van Bokheln v. Canady, 73 J. C. 198, referring to the necessary nature of a registration law, the court said:
“It is to facilitate the exercise of the right of the ballot, and not to defeat it.”
In support of the view above expressed, will be found the cases of Gillesby v. Canyon Co., 17 Idaho, 586, and People v. Hoffman, 116 Ill. 587. Sections 143,147 and 6, supra, must all be obeyed, and the rights of the citizen preserved under them. They must be construed together, and a registration statute must be such in its provisions as to give the elector, who is qualified to vote at the election, whenever it may be, a reasonable opportunity to register, otherwise he' is denied his rights as a citizen, and the election can not be free and equal. Hence, it becomes necessary to examine the act under consideration, and to determine whether in its provisions it' measures up to the requirements of the Constitution. In so doing I am not insensible of the great responsibility which rests upon a court or judge, who dares to challenge the constitutional validity of an act of a co-ordinate and equal branch of the government like that of the General Assembly, and I have not overlooked the principle which requires me to presume that every act of- the legislative department has been and is within its constitutional powers, but I have endeavored in the application of this
(f) The act in the third section, provides that: “Said officers (registration officers) shall register every citizen of the United States of his or her precinct, wlm shall apply to be registered at the time and in the manner required by law, who shall be twenty-one years of age at the next election, who has been a resident of the state one year, of the county six months, and of the precinct in which such person offers to register sixty days-next preceding the election.” This section prescribing,, who shall be entitled to register is somewhat ambiguous,, but by changing the words “who has been a resident,, etc.” into “who will be a resident, etc.” it can be fairly construed to embrace every person who-will be a legal voter at the next election, but there is nothing in it to indicate to what election it has reference, but by a reference to the first section of the act which prescribes the qualifications of voters, who will be entitled to vote at the regular November election, and section 6 of the act which provides a day for registration in the year, 1922, sixty days preceding the regular November election, it is apparent that the election mentioned in this section,. supra, the time of holding which shall control the right to register, is the regular November election, to be held in each year. This conclusion is further strengthened by the fact that it would be impossible on the second Monday in July, 1922, or on the same day in any year thereafter, to know when any other election might be' held, and the section is obliged to refer to an election whose time is fixed, as the many special elections which may be authorized to be held may be held at various, times, which can not be known such a length of time beforehand. While the 7th section, among other things, provides that: “No person shall be entitled to vote in any precinct unless he or she has been properly registered therein, as herein provided, and the registration thereof having taken place at least sixty days prior to such election,” the first section does not make the registration a
(g) After the 1922 registration, only one day is provided for the registration of such persons legally qualified to vote at the following November election, as have not theretofore been registered.
The complaint of those persons who are attending, to their own affairs upon registration -day, -and’ fail to register because they esteem their business affairs above the right of suffrage, may be dismissed upon the ground that the result is as they chose it, and the voter who has not theretofore been registered, and is unable from physi
For the reasons above given, I am constrained to hold that the act is in violation of section 6 of the Constitution, and for such reason the injunction is granted.
I called into consultation with me all the judges of the Court of Appeals, and their views were invited and considered. Judges Settle, Sampson, Thomas, Clarke and Moorman concur in the conclusion reached, but probably not in all the reasons given for my opinion, but Judge Clay was of a contrary opinion, and he will submit Ms views in a separate opinion.
Wihile th-is is -an opinion by Chief Justice Hurt upon a imo-ti-on for an interlocutory order, its publication is -directed by the -court.
Dissenting Opinion
We are commanded by a rule of over a hundred years7 standing to resolve every doubt in favor of the constitutionality of every act of the legislature, and not to declare any act invalid unless plainly violative of the Constitution. One’s right to vote is of little value if his vote may be offset by an illegal vote. Therefore, it is just as important to safeguard the purity of the ¡ballot as it is to protect the citizen in his right to vote, and a law which will accomplish that purpose should not be lightly set aside.
It may be conceded that before our state constitutions contained any provisions respecting the registration of voters, registration acts were not looked upon with favor, and were frequently held invalid on the ground that they unduly restricted the constitutional right to vote; but as our Constitution empowers the legislature to provide for the general registration of voters, and adds, “Where registration is required, only persons registered shall have the right to vote,” it is clear that when registration is required, it is as much a constitutional qualification as any other requirement of that instrument, and there is no longer any reason for applying to the act the strict rule of construction which formerly prevailed.
The act in question does not provide for a registration that will be effective only fór a short time, but provides for a general registration that will be effective for all time, to be' followed by annual registrations of all qualified voters not theretofore registered. For the first year the act fixes three registration days, and for subsequent years only one registration day. It is conceded that three days afford the entire electorate, consisting of about one million voters, a reasonable opportunity for registering. Because of the efforts that will be made to get the voters to the polls, it is certain that practically all the voters will be registered the first year, and that in subsequent years when only one registration day is provided, not over ten per cent, or about one hundred thousand voters, will be entitled to register. Notwithstanding the fact that many thousand voters will be absent on the day of the election because of sickness or other causes, the framers of our 'Constitution provided only one day for holding elections. If one day affords a reasonable opportunity for all the voters to
But it is said that the act does not make suitable provision for .soldiers and sailors, state officers and those voters who become of age after the last registration and desire to participate in special elections occurring before the next registration. It is a matter of .common knowledge that soldiers and sailors who are in active service do not vote unless permitted to vote by mail, and even if we had a hundred registration days, no more would'register than would register under 'the act in question. Of course no anxiety need be felt about the state officers. An hour instead of a day will suffice for all who are in the flesh. Those opposed to the act insist that it does not apply to special elections, but let us .assume that it does. What, then, is the result? There will be no more local option elections, and as a great majority of the counties a-nd municipalities of the .state have already reached the debt limit, it is not probable that there will be very many bond issue elections. As .some of these elections will take place .at the general election, it will only be at rare intervals that any bond issue election will be held on some other day, and the number of voters who will be denied the right to participate, therein will be infinitesimally small. A registration act that does not afford ample time for purging the registration before the election is not worthy of the name, and it is practically impossible to frame an act that will accomplish this purpose 'and at the same time not work a hardship in individual cases. Therefore, it seems to me that a million voters should not be deprived of the benefits of a registration law, and the .state denied the right to have pure elections, merely because an insignificant number of voters might not have the opportunity to vote at a special election, if, perchance, it should happen that such an election should be called. On the whole, I am of the opinion that the objections to the act are so lacking in substance that they afford no reasonable basis for declaring the act unconstitutional.