21 Wis. 566 | Wis. | 1867
Lead Opinion
Section 7, ch. 445, General Laws of 1864, is admitted to be constitutional, and the only question is as to its construction and effect. This is a very important question. It is, whether it is a directory or compulsory statute — whether it is discretionary with the inspectors, the requirements as to affidavit and oath not being in all respects complied with, to receive the votes of persons whose names are not on the registry, or imperative upon them not to do so unless such requirements are strictly fulfilled. The allegation of the complaint is, that of the votes given and counted for the defendant in Milwaukee, an incorporated city, five hundred and forty-four and more were received from persons whose names were not on the register, no one of whom gave to the inspectors receiving his vote his residence within the district, either by his own affidavit or by the oath of a householder of such district. It is
And next it is to be observed, that it is a negative statute. It has been said on very high authority, that negative words will make a statute imperative. Dwarris on Statutes, 715 (7 Law Lib., 55), and cases cited. The words of the act are: “No vote shall be received at any annual election in this state, unless,” &c. It is difficult to conceive any language more strongly imperative than this.
Again, if we consider tbe mischief complained of, and tbe
For these reasons, I am of opinion that the demurrer to the complaint must be overruled.
A motion is also made to make the complaint more definite and certain, because the names of the persons whose votes were illegally received are not given. Such a recitation of names in a complaint would be inconvenient and impracticable,
I think the motion must also be overruled.
By the Court — Ordered accordingly.
Rehearing
On a motion for a rehearing, the counsel for the defendant, conceding that the inspectors had no discretion to receive votes except upon the exact conditions defined in the registry act, and that as to them the act is mandatory and penal in the highest degree, contended that it did not at all follow from this that a resident of the district constitutionally qualified to vote, and who has actually voted, should be punished by losing the vote so cast, because the board required no affidavit of him as it was their duty to do. Our statutes (R. S., ch. 109, secs. 6 and 11) forbid the solemnization of marriage without an examination of one of the parties under oath as to the legality of the same, and imposes a penalty of $500 upon any judge or minister, &c., who shall disregard this provision. Yet no one supposes that a marriage solemnized in disregard of the provision, between persons who were in fact competent to enter into the relation, would be void. King v. Birmingham, 8 Barn. & Cress., 35; Milford v. Worcester, 7 Mass., 54-55. In such cases, nothing short of an express enactment to that effect will enable the courts to declare the marriage void. The constitutional right of the citizen to vote is not to be taken away by implication. If the act had declared that the voter, who, not
The counsel for the complainant, in reply, contended that the argument from the validity of a marriage solemnized in violation of the statute was misleading, because, (1.) The marriage contract is sui generis, and is valid at common law with
The motion for a rehearing was denied.