Stewart v. Foster

2 Binn. 110 | Pa. | 1809

Tilghman C. J.

The question to be decided is, whether an alien, having resided in Pittsburg one year next preceding an election for borough officers, and having paid a borough tax within that time, is entitled tó vote at such election.

This will depend on the construction of the several acts of assembly upon that subject.

Pittsburg was first erected into a borough by an act passed the 22d of April 1794, 3 St. Lazos 588. By the second section of this act, “ the freeholders and other inhabitants, “ housekeepers1'1 in the borough, were authorized to elect two fit persons to be burgesses, who were to be freeholders, and also to elect four suitable persons, assistants to the said burgesses; and also to elect a high constable and town clerk, who should be residents in the borough; provided that no person should be entitled tó vote or to be elected, unless he should have been resident in the borough, at least one year previous to the election. Citizenship is not made a qualification either of the electors or elected; but in this, as in the other acts, the qualification of the elected seems to have been principally regarded; none but a freeholder could be elected a burgess. .As Pittsburg increased in population and in consequence, it was fotmd that the affairs of the borough could not be well conducted under the constitution established by the first law. Perhaps too, it was thought somewhat hard, that no one could vote for borough officers, unless he was a freeholder or a housekeeper. A petition was presented to the legislature for a new act of incorporation, in pursuance of which another act was passed on the 5th March 1804, 6 St. Laws 199; by which the first act was repealed, and considerable alterations introduced into the new incorporation. By the second section of this act u the freeholders, housekeepers, and other in- “ habitants of the said borough, who had resided therein “ at least one year immediately preceding the election,” and within that time paid a borough tax, were authorized to elect one reputable citizen residing therein, to be styled the burgess, and thirteen reputable citizens to be a town council; 'also one reputable citizen as high constable, all of whom should befreeholders in the said borough; but previous to the election, the inhabitants were to elect three reputable citizens as judges, one as inspector, and two as clerks of the said election. The same superior attention to the qualification of the elected is here shewn, which was observable in the first law. They were all to be freeholders and citizens, but not so the electors.

It is not contended that by the words of this law, there is any disqualification of aliens as voters; but it is said that the law is to be construed by equity; that by its literal expressions women and infants might vote, and that by the principles of the common law, it is as proper to exclude an alien, as a woman or an infant. If there had been no reason to suppose that the case of aliens had been under the consideration of the legislature, and if it did not sufficiently appear by the words of the law, that it was not intended to exclude them, it would be necessary to consider the weight of this argument, derived from the principles of the English common law. But as the case is, I shall only say, that the argument is not so forcible here, as it would be in England, because Pennsylvania, both under the proprietary government, and since her independence, has held out encouragement to aliens, unknown to the principles of the common law. I found my opinion solely on the expressions of the act of assembly. When I find the qualifications of the electors and elected, different; when I see that none but citizens can be elected, but that inhabitants who have resided one year, and paid a borough tax within that time, may be permitted to vote, I am irresistibly led to the conclusion, that in the view of the legislature, the peace and prosperity of the borough were sufficiently secured, by providing that the officers elected should be citizens, although aliens of a certain description, who from length of residence, and payment of taxes, might be supposed to have a common interest with the other inhabitants, were indulged with the right of voting.

Thus the matter stands on the act of 5th March 1804. But another act, passed the 7th March 1805, 7 St. Laws 103, has been introduced by the counsel for the defendants, as throwing light upon the question. By this act, all inhabitants of Pittsburg “ who shall have resided within “ the same, six months immediately preceding the election,' “ and who shall in other respects be entitled to vote for mem- “ bers of the general assembly,” shall be entitled to vote at the election of officers. There is nothing in this act which' repeals any part of the former act, or in any manner impairs the right of voting previously vested in any person whatever. It is an affirmative statute, extending the. elective franchise to persons not embraced by the act of 5th March 1804; by that act none could vote who had not paid a borough tax within a year previous to the election. It is stated in the case before us, that in April 1804 an ordinance of the borough was passed, by which it was provided that all taxes should be levied and assessed on real property only. The consequence was that many persons were excluded from voting, who would have been willing to pay taxes, and who were qualified to vote for members of the legislature. These persons would naturally be discontented, and it is reasonable to suppose, that to afford relief to them, and not to take away the right of voting from any description of men who enjoyed it under the former law, was the act of 7th March 1805 enacted. My opinion therefore is that the judgment of the Court of Common Pleas be reversed.

YeATes J.

The simple question in this case is, whether a freeman of full age, either a freeholder or inhabitant of the borough of Pittsburg, who has resided therein one year next before the election, and within that time has paid a borough tax, but who is not a citizen of this commonwealth, is entitled to the elective franchise at an election of borough officers, within the borough.

The solution of this question rests on the true construction of the different acts of assembly respecting the borough of Pittsburg. We must collect the meaning of the legislature from their own words; and the tout ensemble of all the laws, enacted by them in pari materia, must be taken into consideration. The preexisting defect or mischief, and the remedy prescribed, form capital objects of inquiry.

The first act, to erect the town of Pittsburg in the county of Allegheny into a borough, was passed on the 22d April 1794, but the same was wholly repealed by the 15th section of the act of 5th March 1804. The second section of this act runs as follows: “ The freeholders, housekeepers and other “ inhabitants of said borough, who have resided within the “ same at least one year immediately preceding the election, “ and within that time paid a borough tax, shall have power on “ the third Saturday in March next, and on the same day in “ every year hereafter, to meet at the courthouse in said bo- “ rough, and then and there between the hours of 12 and 6 “ o’clock of the same day, elect by ballot one reputable citizen “ residing therein, who shall be styled the burgess of said “ borough, and thirteen reputable citizens to be a town “ council, and shall also elect as aforesaid one reputable citi- “ zen as high constable, all of whom shall be freeholders in “ said borough &c.”

The act “ for the further regulation of the borough of “ Pittsburgh passed 7th of March 1805, is an affirmative statute, and provides “ that the inhabitants of the borough, “ who in other respects shall be entitled to vote for members “ of the general assembly, and who shall have resided with- “ in the same six months .immediately preceding the elec- “ tion, shall be fully competent to vote at the elections of “ officers for said borough.’’ It gives a privilege of voting,, to inhabitants who have resided six months in the borough, provided they are entitled to vote for members of general assembly; but it takes away no privilege conferred by the former act of 5th March 1804. It is therefore obvious that the case before the court must be determined by the provisions of the law of 1804.

I fully agree, that in the construction of all statutes, it is the indispensable duty of courts of justice, to carry into execution the true intention of 'the lawgivers, and that'in some instances, to attain this end, the words of the jaw have been enlarged, and in other instances, restricted. 4 Bac. 649. Statute I. 6. Ploxvden 465. In the case of a last will we are bound to search for the intent of the individual, and in a law expressive of the public will, it is incumbent on us to search for its true meaning. Where the words are clear, plain, and unambiguous, and all doubts and suspence concerning its intention are removed, we have no right to meddle with the policy of its regulations, but must conform to the provisions of the legislature. Ita lex scripta est.

The second section of the act of 5th March 1804 exhibits two distinct prominent features, in prescribing the qualifications of the electors and elected. A power to vote for borough officers, is expressly given to freeholders, housekeepers, and other inhabitants of the borough, who have resided therein one year next before the election, and within that time have paid a borough tax: but the burgess, thirteen town councilmen, and high constable to be elected, must not only be resident freeholders in the borough, but they must possess the superadded qualification of citizenship. The judges, inspector, and clerks, to be previously elected, must also be citizens. The two classes of electors and elected are plainly contra-distinguished in this particular; and we cannot suppose, that if the character of citizen was deemed an essential requisite in the borough elector, the insertion thereof was omitted through oversight.

I freely admit that the general words conferring the privilege of suffrage, must have a reasonable construction; and that in forming the same, we can have no safer guides than the rules of the common law, as received in this state. I think therefore that females, minors, servants for years, and slaves, are not included by the generality of expression. I go further, and am strongly disposed to think, that upon principles of fair and correct construction, if these words of marked discrimination between the electors and elected had not been used by the legislature, that aliens would not have been entitled to vote at borough elections in this place.

It may be objected that we ought not to compel a sojourner to exercise the rights of a citizen, and perform the duties of one; and that an alien may thereby be subjected to penalties imposed on persons refusing to act as, or vote for, borough officers. But this admits of a ready answer. The alien, who is otherwise qualified, may or may not vote at the election of borough officers, at his own will and pleasure. There is no compulsion on him to exercise that privilege, and no penalties are incurred by omitting to use it. But an alien, under the terms of the law is ineligible to a borough office, and therefore no penalties can be attached to the non-performance of duties, which the law has declared him incapable of sustaining.

Upon the whole matter, I am constrained to say, that the judgment of the Court of Common Pleas should be reversed, and that judgment be entered for the plaintiff in error.

Brackenridge J.

The being an inhabitant, and the paying tax, are circumstances which give an interest in the borough. The being an inhabitant, gives an interest in the police or regulations of the borough generally; the paying tax gives an interest in the appropriation of the money levied. A right, therefore, to a voice mediately or immediately in these matters, is founded in natural justice. To reject this voice, or even to restrain it unnecessarily, would be wrong. It would be as unjust as it would be impolitic. It is the wise policy of every community to collect support from all on whom it may be reasonable to impose it: and it is but reasonable that all on whom it is imposed should have a voice ‘to some extent in the mode and object of the application. Reasons of policy may warrant the restraining the eligibility to office, but it must be a strong case of the salus populi indeed, that will warrant the restraining, much less excluding, the right of electing to office.

The act of incorporation before us, of the 5th of March 1804, restrains the right of electing to the being an inhabitant of the borough, and having resided within the same at least one year immediately preceding the election, and within that time paid a borough tax. Could the legislature have restrained farther without departing from a general principle of almost every corporate body? Even in the monarchical republic of Britain, every individual of that community is supposed to be represented, virtually, as they call it, and to have'a voice. I do not believe that a legislature of Pennsylvania, would incorporate with a farther restraint of privilege, unless by oversight. I believe they have not done it. I have not examined at this time; but so far as my memory serves me, there is no incorporation of a borough, in which the being an inhabitant for a reasonable time, and the paying a borough tax, does not entitle to a voice for borough officers. Unless the legislature in this case ipso intuitu, looking at the thing, directly had restrained the qualification in express words, I would not say that it had done it. But has it done it by implication even? If by implication, I would require at least that it should be a necessary implication, which nothing could resist, being contrary to all that is usual in other cases, of a like nature, and contrary to every-principle of wise economy.

Does the act of the 7th March 1805, as is contended, restrain the privilege? It provides that the inhabitants of the borough, who shall have resided within the same six months immediately preceding the election, and who shall in other respects be entitled to vote for members of the general assembly, shall be fully competent to vote- at the elections for officers of said borough. This so far from restraining the privilege of voting in the case of inhabitants for twelve months, who have paid a borough tax, enlarges the privilege in the case of a citizen inhabitant to a residence of six months, even though a tax had not been paid. Shall this courtesy, if I may so express it, this comity of the act of 1805, by implication work an abrogation in its most reasonable and salutary privilege? The construction is repugnant to every principle in the construction of statutes. The intention is manifest. The two acts are consistent and stand together: the last carrying the privilege of voting farther in the case of a citizen, than the former had in the case of inhabitants generally. As to reasons drawn from state necessity, to exclude all but naturalized citizens and those who have a-right to vote for members of assembly, from voting at a borough election, they are observations which might be addressed to the legislature, in order to produce a modification of the borough laws throughout the state; but I take it we are not yet come to that narrowness of thinking or mistaken policy, that they would receive much attention.

The borough ordinance made after the act of 1804, that borough taxes should be levied upon real estate only, thereby excluding inhabitants not freeholders, was unjust as well as impolitic. It was unjust, because it excluded inhabitants who have an interest in the police of the borough, independent of the appropriation of money. It was impolitic, because it excluded the aid of contribution by those not freeholders, and increased the tax on real estate, or hindered the accumulation of funds to be applied to the improvement of the town. In remedy of this exclusion, and indirectly to avoid it, and secure a more liberal policy, the act of 1805 seems to have been made, and was salutary; nay it was necessary, in order to protect the personal rights of individuals, as well as to secure the owners of real estate from the burdens of tax on real estate greater than they would otherwise be. I understand the ordinance has been repealed, but I notice it only as accounting for the law of 1805, which is the law in question.

I am therefore of opinion that the judgment of the Court of Common Pleas be reversed, and that judgment be entered for the plaintiffs in error.

Judgment reversed.