192 Ind. 274 | Ind. | 1922
The sole question presented by the record and discussed in the briefs of counsel is whether or not the several laws enacted by the legislature of Indiana requiring voters to register before taking part in elections were made unconstitutional and void by the amendment of Art. 2, §2, of the Constitution of Indiana on September 6, 1921. Appellant filed his' complaint as a citizen, qualified voter and taxpayer, on behalf of all taxpayers of the State of Indiana, against the appellees, as public officers charged with duties under the provisions of the registration laws, seeking to enjoin appellees from doing any acts or incurring any expense under said laws, in the registration of the voters of Wells county, Indiana, where all the parties reside.. The circuit court sustained a demurrer to appellants’ complaint and he appealed, and has assigned that ruling as error.
The statutes thus attacked provide, in substance, as follows: (a) That no person may vote at any general election unless registered; (b) that the expenses of registration shall be paid out of the county treasury; (c) that precinct boundaries shall be established in March before the election; (d) that five days before the first date for registration an inspector and two clerks shall be appointed in a manner as stated; (e) that they shall hold a regular session on the fifty-ninth day before the election, and again on the twenty-ninth day before the election at a suitable room in the precinct, provided by the county board of commissioners, of which notice shall be given by publication and posting; (f) that blanks with spaces for the residence, age, where born, when arrived in the United States,- when and where declared intention, and when and where naturalized, shall be furnished by the county auditor, and also blank books in which to record the names of persons registered, with such information concerning each of them; (g) that the
A brief has been filed under leave of court by an amicus curiae, in which he suggests that the judgment should be affirmed because the last amendment to Art. 2, §2, of the Constitution was not adopted by the vote of “a majority of the electors of the state,” within the meaning of Article 16 of the Constitution (§233 Burns 1914), which authorizes the adoption of amendments.
In construing the words “a majority of the electors,” it is proper to consider the facts which attended the insertion of those words in the constitution. Article 5, §1, of the Constitution of 1816, provided that every twelfth year thereafter, at the general election for governor, a vote should be taken on the question of calling a convention to revise, amend or change that constitution, and that if “a majority of all the votes given at such election” should be in favor of a convention the governor should inform the general assembly thereof, whose duty it should be to provide by law for holding such a convention. R. S. 1843, p. 57. And the act of Febru- ' ary 14, 1 1, under which the present constitution was submitted to popular vote for ratification or rejection,
The amendments by which the words “if he shall have been duly registered according to law” were added to Art. 2, §2 (§84 Burns 1914), and the provision that the general assembly “shall also provide by law for the registration of all persons entitled to vote!’ was added to Art. 2, §14, were adopted March 14, 1881, at a special election at which only 172,915 persons voted, of whom less than 170,000 voted on the subject of adopting or rejecting those two amendments, although 470,672 votes had been cast for candidates for the office of presidential electors in November, 1880, only four months before such election, and even more (470,738) for candidates for governor in October, and the United States census of 1880 showed 498,437 men of the age of twenty-one years and over, living in the state. But the governor, acting upon a certificate of the secretary of state as to the result of the election, issued his proclamation declaring the amendment adopted (Report Secy, of State 1881 p. 155), and his action has ever since been acquiesced in by all the people of the state.
The insistence by the amicus curiae that the amendment for which a majority of the persons (210,816 in number) who voted at the special election on September 6, 1921, cast their ballots (Indiana year book 1921 p. 12), was not adopted, is based upon the assumption that only a small part of the qualified voters of the state took part in that election, and that the number who actually voted in favor of adopting it were not a majority of those qualified to vote, as shown by the United States census. and the returns from the Presidential election in 1920. It appears from the census returns in that
It thus appears that the amendment of 1921 was adopted by a majority of the votes cast at a special election at which less than half of the qualified voters, as shown by the census and the returns from the general election, actively participated, but in exactly the same way that the amendments of 1881 were adopted.
From what has been said it is apparent that if we should apply the rule that an amendment to the constitution cannot be adopted by the vote of a majority of all the electors who cast ballots at the election at which it is submitted, but can only be adopted by the affirmative vote of a majority of all those in the state who are entitled to vote, as that number is ascertained in another way than by counting those participating in such election, the application of such rule would not áid the appellee. If the enactment of a registry law is authorized and commanded by the constitution, it is because of amendments which were.adopted only by a majority of the voters, cast at a special election when those who voted were less than half the qualified electors, as determined by such tests.
And the constitution, itself, was adopted at an election held under a law which made “a majority of all the
This argument as a cause for affirming the judgment, therefore, breaks under its own weight, and we shall not further consider it.
Prior to 1881 the Constitution of Indiana had not mentioned the subject of registering voters. On March ■ 14 of that year a special election was held, pur suant to a statute (Acts 1881 p. 30) and proclamation (Report Secy, of State 1881 p. 148), at which certain amendments of the constitution were submitted for adoption by popular vote, and the secretary of state having certified the vote to the governor, he issued a proclamation declaring the amendments adopted, including amendments of §§2 and 14 of Article 2, and that “each of said amendments is now part of the Constitution of the State of Indiana.” Report Secy, of State 1881 pp. 153, 155. Such action has been acquiesced in ever since by the people of the state and all departments of the state government. Of the amendments so adopted, §14 of Article 2 remains unchanged, and reads as follows: “All general elections shall be held on the first Tuesday after the first Monday in November; but township elections may be held at such time as may be provided by law; Provided, that the general assembly may provide by law for the election of all judges of courts of general and appellate jurisdiction by an election to be held for such officers only; and shall also provide for the registration of all persons entitled to vote.”
Nine years after the adoption of these amendments, Judge Olds, speaking for the Supreme Court of Indiana, said: “In 1881 the electors of the State by a majority vote of over eighty-seven thousand, amended section 14 of article 2 of the Constitution so as to provide that the ‘General Assembly * * * shall provide for
The construction thus given to §14 of Art. 2, that it authorizes and commands the general assembly to “provide for the registration of all persons entitled to vote,” has not since been challenged so far as we know until a different construction was suggested by the brief filed by appellant. We think that when this section says that the general assembly shall provide for the registration of “all persons entitled to vote,” it means persons entitled to vote at all elections, and not merely at elections for judges, in case they are elected separately, as appellant suggests. As so interpreted this section of the constitution gives the legislature power to enact a registration law, notwithstanding the amendment of §2, Art. 2, provided such law does not violate any other provisions of the constitution. See Morris v. Powell, supra; Brewer v. McCleland, supra.
Article 2, §1, provides that “All elections shall be free and equal.” And as §14 of Art. 2, recited above, had given the general assembly specific authority to “provide for the registration of all persons entitled to vote,” if the language quoted from Art. 2, §2, be open to a fair and reasonable construction which will not make the two sections conflict with each other that construction is to be preferred.
The precise question under consideration was presented to the Supreme Court of Illinois, where it was objected that a registry law, by forbidding any person to vote unless he should have registered on the fourth Tuesday or the third Tuesday before the election, violated the provisions of a section of the constitution which declared every male citizen above the age of twenty-one years entitled to vote after having resided in the state one year and in the county ninety days, and in the election district thirty days, next preceding the election. After deciding that the legislature had power, to enact a reasonable registry law, the court, in holding the law under consideration to be valid, said: “First, the legislature possesses all the law-making power of the State, which the constitution does not ex
The reasoning in the case cited is unanswerable. Being charged by the constitution with the duty to “provide for the registration of all persons entitled to vote,” and to enact such laws governing registration and the holding of elections that “all elections shall be free and equal,” the legislature has power to determine what regulations shall be complied with by a qualified voter in order that his ballot may be counted, so long as what it requires is not so grossly unreasonable that compliance therewith is practically impossible. Requiring voters to appear at the polling booth between certain hours on election day and to cast their ballots in person, involves inconvenience, and some voters find themselves unable to attend at the time fixed. But that fact does not make a statute unconstitutional which provides when the polls shall open and close, and permits none to vote except those who cast their ballots in person during the hours when they are open. And since the legislature has power to provide by law for the registration of all voters, it has power to exclude from the privilege of voting those persons who refuse or neglect to register a reasonable number of days before the election.
The Constitution requires that all persons shall reside in a precinct thirty days before they can vote therein, and the provision contained in the registry laws that voters shall register twenty-nine days before the election is not such an abuse of the legislative discretion that the courts can declare the laws void.
The several statutes under consideration are not un
The judgment is affirmed.
Townsend, J., concurs in the conclusion.