16 Wis. 398 | Wis. | 1863
By the Court,
At the special session of the legislature in 1862, a law was passed allowing the qualified electors of this state, who should be acting as volunteer soldiers in the service of the United States, to vote at the general fall elections. The law provided in detail the mode in which such votes should be taken, returned and canvassed, and that they might be given at whatever places such soldiers should be located at the time, whether within or without this state.
At the election last fall, the relator received a majority of the votes cast in this county for the office of sheriff, exclusive of the votes of soldiers; but the latter changed the result, and if properly counted, elected the respondent, who received the certificate and entered upon the duties of the office. This is a proceeding by quo warranto, by which the relator seeks to obtain possession of the office, and the only question presented, is as to the validity of the law authorizing the soldiers to vote. If that was valid, the relator must fail; if void, be must succeed. He claims it to be unconstitutional. But with the exception of one clause, which will be hereafter specially noticed,
But this principle has certain well defined and universally recognized qualifications. [And although it is true as a general proposition, that the laws of a state have no force outside of its territorial limits,, it is equally true that every state may, in the regulation of its own internal affairs, authorize certain acts to be done outside of its limits, and prescribe what effect they
This class of legislation has been universally recognized as valid for the reason, that although it authorizes acts to be done outside of the country where it is enacted, and specifies in what manner they may be done, still the acts themselves relate to the regulation of the internal affairs of the state over which it has acknowleged jurisdiction, and has no tendency to interfere with the sovereignty of other states in which they may be performed. The act authorized to be done by the law in question, seems to be purely of this character. It is the expression of the will of an elector of this state, in regard to an office to be held and exercised here. It is an-act that relates as entirely to the internal concerns of this state, and is as free from all tendency to interfere with the sovereignty or jurisdiction of any other state where the ballots might happen to be cast, as are any of the acts authorized by the legislature just referred to. This state has the acknowledge power of providing in what manner title to the soil here, may be transferred. It
Having arrived then at the conclusion, that the law in question cannot be held invalid, as being outside of the scope of legitimate legislation by this state, it remains to inquire, whether it is prohibited by the constitution. For it is not necessary to inquire after any other grant of power than the general grant of the legislative power. It being within the scope of the legislative power, it is competent for the legislature to enact it unless prohibited. This rule «with respect to the state
And it is not enough to say that the framers of the constitution never contemplated or “ dreamed'of” a law, authorizing a ballot to be cast outside of the state. That may be conceded, but no prohibition can be implied from it. The legislative power may undoubtedly do many things in the progress of society that the framers of the constitutition never thought of It is not enough to say that such laws are unusual and have never been passed before. This must be admitted; but no case can be found where such, facts have been held to amount to a prohibition upon legislative-action. On the contrary, the rule is well settled, as stated by the supreme court of Michigan in Tyler vs. The People, 8 Mich., 333, “that to warrant us in declaring a statute unconstitutional, we should be able to lay our finger on the part of the constitution violated, and that the infraction should be clear and free from a reasonable doubt.”
It has already been said, that with one exception, no clause of the constitution was relied on as amounting to a prohibition. That exception related to sec. 5, article 13, which is as follows: “ All persons residing upon Indian lands within any county of the state, and qualified to exercise the right of suffrage under this constitution, shall be entitled to vote at the polls which may be held nearest their residence, for state, United States or county officers; provided, that no person shall vote for county officers out of the county in which he resides.” What is the meaning of this proviso ? Did it mean to prohibit any voter from ever being allowed to cast his ballot outside of the county in which he resided, though voting for officers of such county ; or did it mean only to prohibit any voter from voting for the county officers of a county in which he did not reside ? It seems to me obviously the latter. In the first place, if the framers had intended to enact any general provision, confining the right of voting to any particulary place, it would naturally have been inserted as a distinct provision in connection with
In sec. 11, art. 14, is the following provision : “ The several elections provided for in this article shall be conducted according to the existing laws of the territory; provided, that no elector shall be entitled to vote except in the town, ward or precinct where he resides.” This was referred to upon the argument, but it was hardly claimed to have any direct application to the question. By its express terms, it applies only to the elections provided for in the schedule, which were the first elections to accomplish the organization of the state government. It might just as well be said, that it required all elections under the constitution to be forever Conducted according to the then existing laws of the territory, as to say that it had the effect of making the proviso applicable to any election, other than those provided for in that article. It was temporary in its character, and when these first elections had been held, its function was ended. The only bearing it can have on the question under consideration is, that it serves to show that the framers did not intend to make any such restriction as to the place of voting, one of the permanent provisions of the constitution. Where they intended it to exist, as in the temporary provisions of the schedule, they expressed it in clear and positive terms. In those provisions that were designed to be permanent, they made no attempt to express it, hence they in -
The counsel for the relator relied upon the uniform practice hitherto, and claimed that it amounted to a practical exposition of the constitution against the validity of a law lite the one in question. But that position cannot be sustained. If an act may be accomplished in several different modes, the fact that the legislature, for a given time uniformly provides for only one mode, does not at all imply that in their opinion they could not have provided any other. The argument from practical exposition in such a ease, would go only to sustain the validity of the mode provided, not to deny the validity of any other. In the case of Chase vs. Miller, reported in the American Law Register for .January, 1888, the supreme court of Pennsylvania held the law of that state authorizing its soldiers to vote outside of its limits unconstitutional. But the decision is based upon an express provision of their constitution, requiring a residence by the voter “ in the election district where he offers to vote, ten days immediately preceding such election," &c. Their law did not organize any “election districts ” outside of the state, and for that reason the court held it void. Whether they could have done that or not, the court did not attempt to determine. We have no such clause in onr constitution, and the decision is therefore inapplicable here. I conclude therefore, that there is nothing in the constitution which amounts to a prohibition of this law.
But the counsel for the relator contends, that if it is possible for the legislature to authorize any elector to cast his ballot out of the state, then this law is void because it is confined to soldiers and does not provide that all electors who were absent from the state might vote. This conclusion was based upon the assumption that not to provide that they might vote out of the state, if it could possibly be done, amounted to a disfranchisement of such elector. But this is clearly untenable. So long as electors are at liberty to vote at their places of
But the counsel for the relator raises another objection to the law. He claims, that although the legislature may have the power to authorize the votes to be given outside of the state, still it has no power to punish any one for an offence committed outside, and therefore the seventeenth section, which provides for the punishment of persons voting illegally at such elections must fail. And he then claims, that the law falls within a principle which has been frequently recognized by this court, that when an act is passed containing some provisions which might be valid and others which are void, and those which are void were designed as compensations for, or qualifications of the others, so that the court can say, upon looking at the whole statute, that the legislature would not have passed the valid parts, except upon the supposition that the void parts could be enforced also, the whole act must fail.
If it could be held that the provision for the punishment of illegal voting was invalid, it would present a very serious question whether this principle was not applicable to this law. But we are not prepared to say that that provision is invalid. On the contrary, it seems to be well established, that every nation has the right to punish its own citizens for the violation of its laws wherever committed. This right is based upon the duty of allegiance, and it does not rest upon the assumption that one state can extend its laws into another, so as to make them di
In Adams vs. The People, 1 Coms., 178, Judge Bronson recognized the rule as follows: “ It does not occur to me that there are more than two cases where the question of allegiance can have any' thing to do with a criminal prosecution. First, when the accused is charged with a breach of the duty of al
The absolute necessity of this power, with respect at least to the crime of treason, seems very clear. If the citizen could pass beyond the limits of his country, and there adhere to its enemies and wage war against his country, and afterwards return into it and laugh to scorn its power of punishment, because the offense was committed outside of it, the power of every nation to defend itself against treachery would be seriously impaired. The necessity of it is also quite apparent, with respect to many other offenses. As for example, where a state sends its agents abroad to negotiate its bonds, or for any other similar purpose ; should it not have power to protect itself against an abuse of authority by embezzlement or otherwise ? Such considerations show the necessity of the power, and it is recognized and practiced, upon by all nations. And if the power exists at all, the case of illegal voting abroad is clearly within it. . For it is purely a question between the state and its own citizens, and the act is one which would probably constitute no offence whatever against the laws of the state where committed.
But notwithstanding the existence of this right is recognized by the general principles of law, applicable to nations, there may be some room for doubt as to how it would be affected by the provision in our constitution, that the accused shall be entitled “in prosecutions' by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law.” This provision clearly refers only to such crimes as are committed within the state. Can it be held to imply a prohibition against the punishment of any other offenses. I am unable to see that it does. Full effect is given to it by allowing it to control in the trial of all offenses committed within the
I am unable to say, therefore, that the provisions of this law providing for the pnnishment of illegal voting under it, might not be enforced against the citizens of this state, who should violate it abroad, if they should afterwards be found here.
Possibly further legislation may be necessary, providing more particularly as to the mode of trial and what court shoul i have jurisdiction. But if so, that may still be enacted, and the want of it does not affect the validity of the provision already adopted, establishing the offense and the liablity to punishment. If the citizens of other states should violate it, perhaps it could not be enforced against them, even though they should come here. But conceding that it could not, I should not for that reason, hold the law invalid. The military organization of companies, affords a security equal and perhaps superior to that of a registry law, against any illegal voting by citizens of other states. The probability of any successful attempt on their part, to vote under the law, was too slight to warrant the assumption, that the legislature would not have passed it, except upon the supposition that they had power to punish citizens of other states who might violate it.
I must therefore hold this law to be valid. I have examined only as to the power of the legislature to pass it. If the power exists, the policy and expediency of it are for the legislature, and not the courts to determine. Upon this question, whatever arguments may be urged against the policy of such a law, there are also certainly very strong considerations in its
Judgment must be entered in favor of the respondent