7 Wyo. 117 | Wyo. | 1897
Lead Opinion
The plaintiff brought this action in the district court to contest the election of defendant to the office of county
The principal point of controversy in the case arises in relation to the first and sixth reserved questions. Question No. 1 is, “Are the votes mentioned in paragraph five of the statement legal votes ?” Paragraph five of the statement reads as follows : “At said election in precinct No. 1 of Election District No. 6, of said county, known as Hanna Precinct, fifty-four votes were cast for the said defendant by natives of Finland, naturalized citizens of the United States, who were not able to read the constitution of the State of Wyoming in English, and who were not prevented by physical disability from complying
Question No. 6 refers to the votes mentioned in paragraph No. 10 of the statement, and that paragraph presents similar facts as in paragraph five with respect to fifty votes cast for defendant at Carbon Precinct.
A determination respecting the legality of the votes mentioned in the said two paragraphs depends upon the import of that provision of our constitution which requires what is known as an educational qualification for the right of suffrage.
The particular constitutional provisions affecting this matter are as follows: “ The rights of citizens of the State of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall equally enjoy all civil, political, and religious rights and privileges. ” (Art. 6, Sec. 1.)
11 Every citizen of the United States of the age of twenty-one years and upwards who has resided in the State or Territory one year, and in the county wherein such residence is located sixty days next preceding any election, shall be entitled to vote at such election, except as herein otherwise provided.” (Id., Sec. 2.)
“ No person shall lime the right to vote who shall not he able to read the constitution of this State. The provisions of this section shall not apply to any person prevented by physical disability from complying with its, requirements.” (Id., Sec. 9.)
“Nothing herein contained shall be construed- to deprive any person of the right to vote who has such right at the time of the adoption of this constitution,
Section 6 excludes from the elective franchise all idiots, insane persons, and persons convicted of infamous crimes, unless restored to civil rights. It is further required that all elections shall be by ballot; that the legislature shall provide by law for the printing of the names of all candidates for the same office to be voted for at any election upon the same ballot at public expense, to be delivered on election day to the voters within the polling place by sworn public officials, and that only such ballots shall be received and counted, tbe privilege being saved to the voters, however, of writing upon the ballot the name of any other candidate. Absolute privacy in the preparation of ballots is required to be guaranteed, and the legislature is required to pass laws to secure the purity of elections, and guard against the abuses of the elective franchise.
The following clause of Section 9 is the cause of this controversy. i(JVb person shall hme the right to vote who shall not T)e able to read the constitution of this Stated'’ It is contended on behalf of plaintiff that this requires an ability to read the constitution in the English language. On the other hand it is insisted that the clause is not restricted to that language. The question has not been free from embarrassment.
We are profoundly impressed with its gravity and deep significance, appreciating the fact that the decision of the case at bar is but a single instance of the interests which are involved. Not only are the votes to be affected which were cast at Hanna and Carbon in 1896, by native Fin-landers, unable to read the constitution in English, but, their right as well to vote at subsequent elections, and also the qualifications of others in a similar situation, so that the question is one of vital interest to many of our
No person in this State is now permitted to exercise the elective franchise who is not a native born or naturalized citizen of the United States. If one is foreign born he must have resided in this country for such a length of time, and have become sufficiently attached to our institutions to authorize his naturalization. The question, therefore, is whether such a person otherwise qualified is denied the right to vote because his acquaintance with the English language is too limited to enable him to read the constitution in that language, notwithstanding that he has learned to read in his own language, and in such language can read the constitution.
The primary principle underlying an interpretation of constitutions or statutes is that the intent is the vital part, and the essence of the law. (Sutherland Stat. Const., Sec. 234, People v. Potter, 47 N. Y., 375.) “The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is- the intent of the lawgiver that is to be enforced.” (Cooley Const. Lim., 55.) Such intent, however, is that which is embodied and expressed in the statute or instrument under consideration. “The intent must be found in the instrument itself.” (Cooley Const. Lim., 55; Sutherland Stat. Const., Sec. 234.) If the language employed is plain and unambiguous, there is no room left for construction. It must be presumed that in case of a constitution the people have intended whatever has been plainly expressed. Courts are not at liberty to depart from that meaning which is plainly declared.
The remarks of Mr. Justice Bronson in People v. Purdy, 2 Hill, 35, have been frequently quoted with approval. Commenting upon different opinions which were held respecting the purpose and effect of a certain clause of the State constitution and the effect of departing from the language used, he said: “In this way a
In the case of the People v. May, 3 Mich., 604, the court stated the principle as follows : £ ‘ Among the well-settled rules of construction of statutes are these: 1st, the natural import of the words of any legislative act, according to the common use of them when applied to the subject matter of the act, is to be taken as expressing the intention of the legislature, unless the intention so resulting from the ordinary import of the words be repugnant to sound acknowledged principles of public policy; and 2d, if the subject of the statute relates to courts or legal proofs, the words of the legislature are to be construed technically, unless from the statute itself it appears that the terms’were used in a more popular sense. These rules are equally applicable in the construction of a constitution, —as the constitution is law, the people having been the legislators — as much as the statute is law, the senators and representatives being the legislators.” And again, “The natural import of words is that which their utterance promptly and uniformly suggests to the mind — that which common use has affixed to them.”
The presumption is that language has been employed with sufficient precision to convey the intent. (Cooley’s Const. Lim., 55; Hill v. City of Chicago, 60 Ill., 86.) Chief Justice Marshall in the case of Gibbons v. Ogden, 9 Wheat., 188, said, “ The framers of the constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have understood what they meant.” (See also City of Springfield v. Edwards, 84 Ill., 626, 632.)
In an early interesting case in Massachusetts, the court was called upon to expound the true meaning' of that clause of the constitution which required that representa-
The constitution derives its force from the people who adopted it, and it is the intention of the people which is to be sought for. (Cooley’s Const. Lim., 66.) That learned author says, “ It is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in ' the belief that that was the sense designed to be conveyed.” Further, the meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. (Cooley 55; C. & O. Ry. Co. v. Miller, 19 W. Va., 408.) In this connection Judge Cooley, in his work on Constitutional Limitations, made some observations which are. so pertinent that I quote them: “A constitution is not to be made to mean one thing at one time and another at some subsequent time
1 ‘ What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. " (Cooley, 54, 55.) So the language of the constitution is to be understood in the sense in which it was used at the time when it was adopted. Hale v. Everett, 53 N. H., 9, 125; Opinion of Justices, 126 Mass., 557, 589. Is there ambiguity in the language of the first clause of Sec. 9 of Art. 6, or does it possess a definite and precise meaning ? If it is plain, clear, and free from ambiguity, what meaning is expressed thereby ? This clause is not connected with any other part of the constitution which tends to explain or modify it. It is an independent provision, and its meaning must be found disclosed within its own terms.
The subject matter of the article in which it appears is suffrage. It prescribes the qualifications of electors. In gathering the intent from the language employed in a law covering that subject, there are certain additional rules of construction which should be observed. Statutes which confer or extend the elective franchise should be liberally construed. Sutherland Stat. Const., 441. The voter must, without any undue straining of the language in any direction, come within the terms of the law, and all reasonable doubts should be resolved in his favor. “ Such is the fair tendency of our institutions.” The People v. Dean, 14 Mich., 406, 417.
As a reasonable corollary of those principles, we think it should follow that any provision which excludes any.
From an orderly and logical standpoint the initial step in arriving at a correct interpretation of the provision that “ no person shall have the right to vote who shall not be able to read the constitution of this State, ” is an inquiry respecting the ordinary and obvious meaning of the words •employed according to their arrangement and connection. Independently of the specification of a particular instrument, which a voter must be able to read, an ability to read necessarily implies some language; but the requirement that a person, as a condition precedent to the right to vote, shall be able to read, is inseparably connected with a definite instrument. The sense in which the framers of the constitution, and the people in adopting it, employed
The constitution is mentioned as something which one must possess an ability to read. With this idea -in view, the true significance of the word “constitution,” as used in the section, becomes a matter for serious investigation. In its most general sense a constitution is defined as “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” Cooley’s Const. Lim. 2. In a lecture, forming one of a series, delivered by the late Mr. Justice Miller, upon the federal Constitution, he said: “The term ‘constitution’ may be applied not improperly to the guiding principles underlying all these varying forms of government, whether they are, or are not, established by any written instrument. ” Miller on the Const., 63.
Comprehensively considered, therefore, a constitution consists in the fundamental principles of government, and, as thus understood, the use of the term would not be inapplicable in referring to almost any kind of established human government. Under such an enlarged definition, however, it might be either written or unwritten. The principles thereof might rest solely upon the will of an absolute monarch. It is manifest that we are not at liberty to entertain so broad a view of the word as it is found employed in the clause under consideration. In this country it is invariably understood and received as indicating something less than that which is embraced within its comprehensive definition.
In the language of Judge Cooley, “In American constitutional law the word ‘ constitution ’ is used in a restricted sense as implying the written instrument agreed upon by the people of the Union, or any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it.”
In the case of the State v. Parkhurst, 9 N. J. L., 427, at page 548, the court defined it in the following language: “What is a constitution? According to the common acceptation of the word in these United States, it may be said to be an agreement of the people in their individual capacities, reduced to writing, establishing and fixing certain principles for the government of themselves.” It would be difficult to ascribe any different meaning than the American one, as above defined and explained, to the term as it is found in the article on suffrage in our constitution.
When the word was used, the convention was engaged, in formulating, and the people afterward in ratifying and adopting, -a written instrument containing organic rules for their government. They were proceeding to organize and establish a State, and to lay down in written form certain fixed and inflexible principles and mandates, which should, until legally changed, be adhered to by all departments and officials, and by the people themselves. It is self-evident that the common acceptation of the word “constitution” elsewhere in this country, was the sense in which they understood and employed it in providing that one qualification for an elector should consist in an ability to read the constitution of this State, which
In pursuing such an inquiry the path has been enveloped in some obscurity by the fact that no reference to any particular language is found in the section; and the further fact which seems reasonably certain, that such omission occurred by design. The circumstance which indicates that purpose is the strong probability that the source of our provision is to be found in the constitution of Massachusetts, the phraseology of which closely corresponds to that of our own, but follows the word ‘ ‘ constitution” with the words £<in the English language,” thus explicitly and expressly confining the ability to read to that language. In the place of those added words in the Massachusetts constitution we have used the words, “of this State.” Reference to the debates of the constitutional convention discloses that the confessed author of the proposition cited the case of Massachusetts and alluded to the fact that' in that commonwealth, a voter was required to be able to read the constitution in English. Such omission under all the circumstances, is supposed to positively indicate not only a purpose to omit the words above mentioned, but an intention, that there need not exist an ability to read in English.
The majority, if not all the members of the court, have been strongly impressed with that argument, and the position has seemed not only plausible but to some extent reasonable. Its very plausibility has courted care
The fact that in the convention the provision of the other State was mentioned, we have also thought disclosed a purpose to otherwise regulate the matter in this State. We are still somewhat of that opinion, but the difficulty in the way of allowing that fact to have more than persuasive influence, rests in the proposition that to do so we must attribute such intention to the convention itself, and to the people adopting the instrument, when it may be true, for all that we can know, that but few may have heard or learned of the remarks referred to. The committee of the convention on suffrage, which reported the article on that subject, and as regards the first clause of Sec. ,9, in the condition it is now found, except a provision for its taking effect at a date a few years later, was composed of the author of the proposition, three members of the legal profession, the president of the State university, and the
The debates of the convention are not a very reliable source of information upon the subject of the construction of any particular word or provision of the constitution. As we understand the current of authority, and the tendency of the courts, they may for some purpose,- but in a limited degree, be consulted in determining the interpretation to be given some doubtful phrase or provision ; but, as a rule, they are deemed an unsafe guide. In this case the debates are rather unsatisfactory. It is difficult to reconcile them upon the understanding which may have prevailed respecting the real scope of the educational qualification. There appears to have existed quite a divergence of views concerning the number of persons who would be affected by the provision, and we are at a loss to satisfactorily determine whether that difference of, opinion, or rather of statement, grew out of a difference
English was and is the language in common and general use in this State; the legislative enactments from the organization of the Territory had uniformly been expressed and published only in that language. The proceedings of the courts were and are conducted exclusively in English. In the constitutional convention no other language was employed; the constitution itself being framed and expressed in that language. It has never been promulgated in any other.
These facts, in addition to their influence upon the true meaning of the term “constitution,” should also be kept in view if it becomes proper or necessary to go outside of the phraseology to discover the prevailing intent of those who prepared the organic law. Such facts have, therefore, a double bearing ; they serve to illustrate and explain the words themselves, and are factors in the search for any purpose behind them. They are important in either respect.
"We revert, therefore, to the question whether a translation would constitute a copy of the constitution, in the commonly accepted sense of that word. A “copy” is defined as a reproduction or imitation, as of a writing, printing, drawing, painting, or other work of art, so as to have another or others similar to the original. Standard Dictionary. It is a document which is taken or written from another, as opposed to an original. 1 Rapalje & Lawrence L. Dict., 293. To translate is to give the sense or equivalent of, as a word, an expression, or an entire work in another language or dialect. Standard Dictionary, 1917. Hence, to explain by clearer terms, or to express in a different form or style of language. Id.
The question whether a translation constitutes a copy of a book was squarely decided in the case of Stowe v. Thomas, 2 Wallace Jr., 547. That case involved an alleged infringement of the copyxdght of Mrs Stowe’s Uncle Tom’s Cabin, the defendant Thomas having made a translation in German. Mr. Justice Grier in the opinion said, “Now, although the legal definition of a ‘book’ may be much more extensive than that given by lexicographers, and may indicate a sheet of music, as well as a bound volume; yet it necessarily conveys the idea of thought, or conception, clothed in language or in musical characters, written, printed, or published. Its identity does not consist merely in the ideas, or information communicated, but in the same conceptions clothed in the same words, which make it the same composition. A ‘ copy ’ of a book must, therefore, be a transcript of the language in which the conceptions of the author are clothed; of something printed and embodied in a tangible shape. The same conceptions clothed in another language can not
We apprehend that if some one should undertake to embody the principles and rules set out in our constitution, in other words of oür language, and rewrite the whole instrument by the use of different words, but expressing the same sense, such a work could not in any correct sense, legal or otherwise, be denominated the constitution of this State, or even a copy of it; and it is probable that no one would long contend that it could be. A translation into another language might just as completely preserve, and the work composed of such translation might truly communicate, the sense of the constitution. All its rules, maxims, and definitions might be found therein stated, but it would not be considered a copy. The substance of its mandates would have been copied, but not the words and language. We have shown in an earlier part of this opinion that according to the American understanding of the word, the term ££ constitution ” is not merely the fundamental principles of government, but the written instrument containing them, or such principles reduced to waiting. Hence it is clear that a work reproducing such principles only, can not constitute, in any correct sense, a copy of the constitution as it is usually understood and accepted. We are convinced that a copy of that instrument can consist only in a reproduction of the words of which it is composed in the same relation as they are there found, and thus, as a necessary consequence, in the language in which it is written No doctrine of statutory
Again, we search in vain for any provision in the constitution respecting its publication, or the manner in which it shall be promulgated.
Under the provisions for the publishing of the laws enacted at the various legislative sessions, there appearing no express statutory regulation to the contrary, it would doubtless be presumed that they were to be published in the language in which they were written and passed. That presumption has been uniformly acted on by the officials of the executive department. Analogous doctrines are found in the decisions. In the case of Road in Upper Hanover, 44 Pa. St., 277, the court said in considering a notice about roads, which had been published in a German newspaper in the German language, “The law must have a definite meaning, and therefore it can not mean that public notice may be given in any language that one of the parties may choose to employ, but in the ordinary language of the country, which is used in judicial proceedings.” In another case we find the following: ‘ ‘ When a statute directs a notice to be published in a newspaper, the courts will presume, in the absence of anything to the contrary, that the Legislature designed the notice to be published in the same language as the newspaper itself. They will also presume that the notice is to be given in the ordinary language of the State. The present statute contains no express intimation as to the language in which the notice is to be given, or the newspaper is to be printed. Consequently, the presumptions mentioned arise, and require notice to be given in English in a newspaper printed in the same tongue.” Publishing Company v. Jersey City, 54 N. J. L., 437. In the State of Louisiana, under the constitution of 1812, all laws were required to be promulgated and preserved in the language in which the Constitution of the United States is written; and, in construing a statute passed while that constitution
In the case of People v. May, supra, the Michigan court said that £ ‘ a constitution is law, the people having-been the legislators.” In that law — the organic law of the State, which could only have been adopted originally by the people, and is not susceptible of any ultimate change, except with their consent, or more correctly speaking their positive act — no provision was made with reference to the language in which it was to be promul-. gated. It seems to us that the same presumptions which have been adverted to must be held to apply; and consequently, that it was and is to be published in the English language, the same in which it was written, and which is the language of the country. It is impossible, therefore, that there can exist any authorized publication of the constitution in any other language, for any purpose of construction or enforcement.
We are not prepared to deny the power of the Legislature to provide for translations of that instrument for some limited purposes; for instance, to inculcate a more general knowledge of its rules and principles, and of the character of our local government. But, under no circumstances could a court resort to such a translation as possessing any force or authority. It follows that the word “constitution” mentioned as the instrument which a voter must be able to read, is to be understood and construed with reference to the presumption arising from an absence of authority given by the people to publish it in any language or form other than that in which it was written, and which is the language in common and general use. The constitution is a law. It is the fundamental, inflexible law in written form which controls, limits, and orders the powers of all departments of government. We are thus led to inquire regarding the essential fea
“Anterior to the adoption of the constitution, the laws of the Territory were passed and promulgated in the two languages; and our civil tribunals have repeatedly and invariably decided that the one was as much entitled to respect as the other. These decisions contain a proper exposition of the law as it then existed. The constitution, however, which is the supreme law, appears to have formally abrogated and abolished, what was, no doubt, up to that time the settled law upon the subject. In the fifteenth section of the sixth article of the constitution, it is enacted that, ‘ ‘ All laws that may be passed by the Legislature, and the public records of the State, and the judicial and legislative written proceedings shall be promulgated, preserved, and conducted in the language in which the Constitution of the United States is written.” “The language here used is as clear and unambiguous as that found in the section of the act of 1829, on which we have just been commenting. If all the laws passed by the Legislature are tó be promulgated, preserved, and conducted in the language in which the Constitution of the United States is written, and that language is English, it is difficult to imagine how an act which has not been thus promulgated, preserved, or conducted can be considered as possessing the stringent force,- power, and effect which is necessary to constitute a law. It would be a petitio principii to say that it has been promulgated, conducted,
The opinion from which the above is quoted, it will be observed, distinctly holds that, except as preserved and promulgated in the English language, the statute did not have the force and power of a law. That is equivalent to saying that the translation is not the statute ; and by analogy applied to the matter here under discussion it would follow that a translation of the constitution would not be the constitution. In the State of Connecticut the constitution by an amendment in 1855, provides that ‘ ‘ Every person shall read any article of the constitution, or any section of the statutes of this State, before being admitted as an elector.” "We have not been able to find any report of a judicial construction of that amendment, and have every reason to be satisfied that it has not been before the courts for that purpose; but, so far as we know, the custom in that State has invariably been to require a. reading in English, and that it has not been suggested that a reading of a translation would answer the constitutional requirement. The two cases above referred to are the only ones coming to our notice wherein the precise nature of a translation of a law into another language was involved and determined. They refused to brand such a translation as either the law itself or a copy of it. It is essentially something else. It is so entirely distinct from the law that a mention of the latter as an entity considered as a written instrument will not include it. No decision to the contrary has been cited, and we have found none.'
From what has been said, the proposition, to us, seems irresistible that to authorize such an interpretation of the-constitutional provision as would confer upon a person the right to vote, if he is able to read a translation of the constitution in another language, renders it necessary to entirely depart from the clear, commonly accepted meaning of the language employed, and in doing so, to enter upon.
The debates of the constitutional convention have been referred to. In all probability there would occur no disagreement after a careful scrutiny of those debates, regarding the general purpose the convention had in view by the adoption of the educational qualification. Throughout all the discussion, a particular class of voters was prominently mentioned. That was what was called the uneducated foreign element in the coal mining camps along the line of the Union Pacific Railroad. They were, by some, spoken of as ignorant of our institutions, and it was claimed that they were not intelligent voters. It would seem that had it been the positive intention not to deprive a foreign-born citizen of the right to vote, in case he was sufficiently educated in his own language to enable him to read a translation of the constitution, that intention would have been expressed, or some provision would have been made for translations. Had some such provision been made, there might have been room for modifying the ordinary import of the words of the clause. Hanna and Carbon precincts are located in coal-mining towns along the railroad mentioned.
We are not unmindful of the fact that, as reported by one of the newspapers published at the time, at the capital of the Territory public meetings were held in that city previous to the vote of the people upon the question of the adoption of the constitution, which were addressed by prominent men; and. that it was publicly stated by two gentlemen, one of whom had been a member of the convention, that as to the educational qualification, a reading in English was not required. I have no doubt whatever of the honesty of those statements; and if it were possible to attribute any ambiguity to the words providing such qualification, such statements publicly made would be
In view of the probability that any express mention of the English language was purposely avoided by some person or persons in framing the provision for an educational qualification, we are not surprised that there has existed an honest difference of opinion relative to its scope and effect; and that it has been the subject of inaccurate and loose interpretation. That any bi'oader construction than that which the court has placed upon it is loose and inaccurate, we are convinced; and are, therefore, constrained to hold that, in the sense of the constitutional requirement, no person is able to read the constitution of
Respecting the number of votes to be deducted from the number counted, returned, and abstracted for the defendant, that becomes a mere matter of calculation, and not being involved in any difficulty, hardly requires direction or advice from this court.
The fourteenth question is, “What judgment should be rendered in this action?” The statute authorizes questions, not cases, to be certified to this court for its decision. It may be said, not improperly, perhaps, that the case is certified for the decision of the supreme court upon certain important and difficult questions, but in the strict sense, the case itself is not brought before us for determination. It is here temporarily awaiting a decision upon the reserved questions. The papers must be here to disclose the fact that the reserved questions are actually involved. In our opinion the fourteenth question is not a proper one for reservation.
Concurrence Opinion
(concurring).
I concur in the conclusion reached, and very largely in the views expressed in the opinion of the court.
The constitution, Sec. 9, Art. 6, provides that “ no person shall have the right to vote who shall not be able to
The rule uniformly laid down by the courts and text writers in interpreting statutes and constitutions is that resort must first be had to the language itself. Sutherland says, “It is beyond question the duty of courts in •construing statutes to give effect to the intent of the lawmaking power, and seek for that intent in every legitimate way. But first of all in the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation. The statute itself furnishes the best means of its own exposition; and if the sense in which words were intended to be used can be clearly ascertained from its parts and provisions, the intention thus indicated will prevail, without resorting to other means of aiding in the construction.” Sutherland Stat. Const., Sec. 237. He says further, “And one who contends that a section of an act must not be read literally must be able to show one of two things, either that there is some other section which cuts down or expands its meaning, or else that the section itself is repugnant to the general purview.” Id., 238.
That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a
The plaintiff contends that to qualify a citizen for the suffrage in this State, he must be able to read the constitution of the State in the English language. While upon the other hand it is contended by the defendant that the citizens in question, though unable to read the constitution in English, are yet qualified voters, being able to read a translation or interpretation of it in the Finnish language.
Considering the question in the light of the principle, and according to the rule above stated, if the language were simply that the voter must he able to ‘1 read, ’ ’ without specifying the particular language or the particular instrument to be read, the meaning might .be deemed less clear. Yet even in cases where an act is required to be done and the language to be employed is not specified, it has been uniformly held, so far as I have been able to find, that where the judicial language of the State is English, that language is intended, and must be employed. In Texas, where one of the qualifications of jurors was the ability to read and write, without specifying any language, it was held that the English was intended, and that a citizen was disqualified as a juryman unless he was able to read and write English. Nolan v. State, 9 Tex. App., 423; Garcia v. State, 12 Tex. App., 339.
In Pennsylvania, where publication of a notice “in a newspaper ” was required, not specifying the language to be used, it was held that English was intended, and that publication in a German newspaper was not a compliance with the law, although German was largely used in the particular locality, and the court in the same opinion referred to the propriety and necessity of a proper statute authorizing a publication in German. Road in Upper Hanover, 44 Pa. St., 277.
In Hew Jersey, where a statute directed publication in a newspaper, without specifying in what language, the court held that it must be in English, the ordinary language of the State. Publishing Co. v. Jersey City, 54
In Wisconsin, where the language in which the required publication should be made was not specified, it was held that if the publication was made in English, a city council might also authorize a publication in a German newspaper. Kellogg v. City of Oshkosh, 14 Wis., 684. Indeed, I have found no case where the question has arisen that it has not been decided, either expressly or by implication, that where no language is named, the English, the language of the country, is intended.
But the requirement of the constitution is much more than that the voter shall simply be able to read. It is that he shall be able to read a particular instrument — ‘ ‘ the constitution of this State.” These additional words can not be treated as mere surplusage, and rejected from our consideration. They have some meaning, and in interpreting them the question immediately and necessarily arises, What is the constitution of Wyoming, which this clause requires the citizen to be able to read to qualify him for suffrage? The answer is drawn from the common knowledge of the people, and which courts and juries are supposed to possess, and must apply in reaching their decisions. It is an instrument written and adopted in the English language, the judicial language of the State. The requirement is not that the voter shall have studied, or shall understand and comprehend the contents or substance of it, but that he shall be able to read the specific instrument. He must have that much and that character of education. To construe a reading in any other language than the English to be sufficient, something must be added to the section, so that it would read in substance: “No person shall have the right to vote who shall not be able to read the constitution of this State, or a tra/nslation thereof.'''1 It needs no argument to establish that a translation is not identical with the original. No matter how simila/)' it may be in meaning, it is plain it can not be identical — it is not the instrument, but a translation or interpretation
The argument might, if necessary, be much extended. Not only is a translation not identical in the sense of being the same in words, but it is uniformly recognized that it is not precisely similar ii\ meaning, and in the nature of things in any extended composition can not be. Many English words have no precise equivalent in other languages, for the reason that the ideas expressed by them are not familiar to the people who speak those languages. It is plain that a people having no knowledge of the steam engine would have no word to express or describe it. And it is equally clear, I think, that civil liberty as it exists in the States of America being unknown to the subjects of a despotic government, they could in the nature of things, have no word or phrase in their language to describe or define it; and the very word “constitution” when translated into their language, would of necessity convey the idea of a grant or concession from the ruler, rather than the idea of an instrument declaring the organic law, made by the people themselves and binding upon the people and their rulers alike. So that to hold that the ability to read a translation in such cases would meet the requirements of the section, would necessitate a still greater alteration in its words, so that the section would then in substance read: No person shall have a right to
This is not only the reasonable view, but the one supported by authority. In the case of State v. Mayor of Orange, 54 N. J. L., 112 (22 Atlan. R., 1004), the charter of the city required that public notice of a contemplated improvement should be given by publishing a copy of the proposed ordinance, and that the said notice should state the time and place of the meeting of the council to consider the said ordinance. The charter also provided that these notices should be published in all three of the newspapers of the city, one of which was published in the German language. The court held that the notice published in the German newspaper must be in the German language, as otherwise it would not be “published,” but only “printed.” But that the copy of the ordinance required to be inserted in the notice in such German paper must be in the English language. The court further, say: “Again, the charter requires all ordinances, after their passage, to be published in the same three papers. This ordinance was published in a German translation only. I think this was also a mistake. There is a manifest distinction to be observed between the publication of a notice and the publication of an instrument or statute or ordinance. A notice requires no particular collocation of words, so long as it conveys a clear notion of its subject; but a statute or ordi/na/nce has no legal existence except in the la/nguage in which it is passed. No translation, however accurate, can be adopted in place of its original text, for the purposes of construction in a legal proceeding. Until the Legislature makes a provision for the printing of ordinances in German newspapers in translation, it is not perceived how they can be printed otherwise than litera et verbis. The publication of the translation may be regarded as a proper explanatory adjunct of the English copy, but can not be accepted as a legal substitute for it. This view of the manner in
This language can not be misunderstood. The court distinctly hold that such an instrument ££has no legal existence except in the la/nguage in which it is passed,— that a translation can not be accepted as a legal substitute for it.”
In Stowe v. Thomas 2 Wallace Jr., 547, Uncle Tom’s Cabin had been translated into German by the author, and the translation secured hy copyright. The defendant made a second translation into German, published it in a Philadelphia newspaper, and was proceeding to secure such second translation by copyright. It was held that such second translation was not an infringement of the copyright of the original, nor, being an independent translation, of the copyright of the first translation. And the court says, “Its identity does not consist merely in the ideas, knowledge, or information communicated, but in the same conceptions clothed in the same words, which make it the same composition. A £ £ copy ” of a book must, therefore, be a transcript of the lemiguage in which the conceptions of the author are clothed; of something printed and embodied in a tangible shape. The same conceptions clothed in another language can not constitute the same composition, nor can it be called a transcript or £ ‘copy ” of the same £ £ book. ” Id., 565.
The reasoning of these cases applies with full force to what is called ‘£ the constitution ” under our system of government. It is true that in a general sense a constitution may be defined as £ £ a fundamental law or basis of government, ’ ’ and, as in the case of the English constitution, . may be unwritten. But this is not the American sense. Judge Cooley says -• £ £ In American constitutional
But it is urged with great earnestness that the section must be strictly construed, and no language being mentioned, and the term ‘ ‘ to read ” being applicable to a reading in any language, it can not be restricted to a reading in the English. It is said, “he must be unable to read the constitution at all, to come within the strict meaning of Sec. 9.” That is to say, if by any possible interpretation of the words he can be said to be able to read the constitution, he is not excluded from the suffrage by its terms. This is not a proper application of the rule of strict construction. The court in U. S. v. Wiltberger, 5 Wheat., 95, says: “It is said that, notwithstanding this rule, the intention of the lawmaker must govern. This is true, but this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: That though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend.” And in the English case of Nicholson v. Fields, it is said : “I admit that the common distinction between penal and remedial acts; viz., that the one is to be construed strictly, the other liberally, ought not to be erased from the mind of a judge; yet whatever be the act, be it penal, and certainly if remedial, we ought always to look for its true construction. In that respect, there ought to be no distinction between a penal and a remedial statute.”
In 'my opinion the circumstances do not arise which would authorize the court to interpret the section otherwise than by the natural and ordinary meaning of the words themselves; for it can not be shown, as required by the rule as stated by Sutherland before it can be read other than literally, ‘ ‘ either that there is some other section which cuts down or expands the meaning, or that the section itself is repugnant to the general purview.”
But if it were deemed necessary or permissible to resort to other sources of information to aid in the construction, this view is rather strengthened than otherwise. At the same time there is one suggestion which seems to be, in some measure at least, persuasive of a different view; and that is that this section is modeled upon a similar one in the Massachusetts constitution where the requirement is the ability “ to read the constitution in the English language.’1’’ And it is forcibly urged that the omission of the words, “in the English language,” proves the intention of the convention to dispense with that requirement. But it is evident in the first place, that the rule that statutes originally enacted in another State, when adopted, are deemed to be taken with the settled construction given them in the State from which they are copied, has no application; for the converse of the proposition is simply a negative, that not having copied
I am therefore of the opinion that the meaning of the words themselves is clear, and there is no occasion to resort to external aids in their construction; and that if the debates should be resorted to, it would further appear that the words as interpreted express the true intent of the convention and the people.
I also concur in the opinion that an answer to the remaining questions submitted not being necessary to a decision of these cases, they ought not, at this time, to be considered.
