Page v. Allen , 58 Pa. 338 ( 1868 )

The opinion of the court was delivered, July 2d 1868, by

Thompson, C. J.

The first of these bills was filed by the plaintiffs, residents, taxpayers and qualified voters of this city, against the defendants, the aldermen of the city, to restrain them from exercising certain powers and authority in their aggregate capacity; which, it is alleged, they claim to be conferred upon them by the provisions of an Act of Assembly, passed April 4th 1868, entitled “ A further supplement to the act relating to the elections of the commonwealth,” and from appointing or attempting to appoint canvassers as directed in and by the said act; or from interfering or intermeddling with, or obstructing or attempting to obstruct, the qualified voters of this commonwealth, by any act or means whatever, from the enjoyment of the rights of electors secured to them by the constitution of the commonwealth. The second bill is to the same effect by parties possessing like qualifications, and including as defendants the members of Select and Common Councils of the city, the City Commissioners, Controller and Treasurer of the city, as well as the Aldermen.

These bills question the constitutionality of the Act of Assembly referred to, and familiarly known as the “Registry Act,” and charge, among other matters, that a large sum of money will be required from the city treasury to put the act into operation, which, as taxpayers, they are interested to prevent, and which would be wholly misapplied, the act being, as they allege, unconstitutional and void. The right of the plaintiffs to interfere on these grounds was not disputed, neither do I think it could have been at any time since the decision in Sharpless v. The Mayor, &c., 9 Harris 147, and Moers v. The City of Reading, Id. 188. In both, it was conceded that the interest of a taxpayer, where money was to be raised by taxation, or expended from the treasury, was sufficient to entitle him to proceed in equity to test the validity of the law which proposed the assessment or expenditure. To this effect is Mott v. The Pennsylvania Railroad Co., 6 Casey 9. That we have power to enjoin the respondents has not been disputed. The cases of Kerr v. Trego, 11 Wright 292, Irving v. Thompson, 7 Id. 379, if. authority were wanting, would he sufficient for this.

The power of this court and its duty to declare an Act of Assembly unconstitutional, if it be plainly so, is no more to be doubted than its power to declare an instrument of writing void for want of due execution. This power is not disputed. What shall be the test of want of constitutional sanction, is a question of more or less difficulty in all cases involving it. It is usual on the part of those who insist on the constitutionality of any given statute, to claim that it must be regarded as constitutional, unless expressly prohibited by some provision in the constitution. In other words, in construing the constitution of the state, whatever is not expressly denied to the legislative power is possessed by it. The opposite of this rule, I may remark, is the rule of construction of the Federal Constitution. I assent to this, but not that the inhibitions of the constitution must be always express. They are equally effective, and not less to he regarded, when they arise by implication, and this is the case when the legislative provision is repugnant to some provision of the constitution, 9 Watts 200; 5 W. & S. 424; 12 S. & R. 330; 3 Casey 444; 5 Wright 403. To illustrate this idea: The executive power of the state under the constitution is lodged in a governor, and the legislative in a senate and house of representatives. It would be manifestly repugnant to these provisions of the constitution if an Act of Assembly should provide for the election of two executives, or two senates and houses of representatives at the same election; yet it would be unconstitutional only by implication, there being no express prohibition on the subject. So in regard to qualification for office. . An act which should require a residence in the state for ten years, instead of three, or an age of fifty years, or freehold estate, in order to be eligible to the office of representative, would be void for repugnancy, because differing from the qualification expressed in the constitution, and would be so only by necessary implication; necessary to keep legislation within the paramount rules of the constitution. The expression of one thing in the constitution, is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions, declaratory in their nature. The remark of Lord Bacon, “.that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated,” expresses a principle of common law applicable to the constitution, which is always to be understood in its plain, untechnical sense: Commonwealth v. Clark, 7 W. & S. 127.

These instances illustrate the. principle of the authorities, which hold, that acts repugnant to the constitution are void by implication, and at the same time they also illustrate the inquiry in the case in hand, whether this act is constitutional.

In Article III.] Section 1. The constitution declares, “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he intends to vote ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector; but a citizen of the United States who had previously been a qualified voter of this state and removed therefrom and returned, and who shall have resided in the election district, and paid taxes as aforesaid, shall be entitled to vote after residing in the state six months. Provided, That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the election district ten days as aforesaid, shall be entitled to vote, although they shall not have paid taxes.”

These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and to freemen, sacred right, of which they cannot be divested by any but the power which established them, viz.: The people, in their direct legislative capacity. This will not be disputed.

For the orderly exercise of the right resulting from these qualifications, it is admitted that the legislature must prescribe necessary regulations, as to the places, mode and manner, and whatever else may be required, to insure its full and free exercise. But this duty and right, inherently imply, that such regulations are to be subordinate to the enjoyment of the right, the exercise of which is regulated. The right must not be impaired by the regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded under the name or pretence of regulation, and thus would the natural order of things be subverted by making the principle subordinate to the accessory. To state is to prove this position. As a corrollary of this, no constitutional qualification of an elector can in the least be abridged, added to, or altered, by legislation or the pretence of legislation. Any such action would necessarily be absolutely void and of no effect. We hold, therefore, what indeed was not expressly denied, that no regulation can be valid which would have the effect to increase the district, or state residence, prior to the time of an offer to exercise the right of an elector, or which would impose other or additional taxation or assessments, than those provided in the constitution.

With these principles in view, we are to inquire how far the provisions of the Act of Assembly in question, conflict, if at all, with the provisions of the constitution on the subject of the qualifications and rights of electors. Before proceeding to this, however, I must remark, that the regulations in the act are materially distinct and different in the other portions of the state from those proposed and intended for this city. I have not time or room in this opinion to point them out. A very cursory reading of the act will suffice to show it. In the city they are more complex, and consequently render the chances of registration, in my opinion, more difficult and precarious. For myself, I think a material diversity of regulation, not the result of locality merely, but of policy, between different parts of the state, is itself, a violation of the guaranty in the bill of rights, that “ elections shall be free and equal” to all those possessed of the designated qualifications. If policy, and not locality or physical necessity, be allowed as reasons for a great diversity of regulation, the political bias of a section might become the pretext for the complication of regulations, in order to enjoy the rights of an elector, so as to be destructive of the right itself. If all the citizens are within the equal protection of the provision quoted, that “ elections shall he free and e,qual,” then they are subject only to such diversities as grow out of locality alone, in my judgment, not to increased trouble and expense in establishing their qualifications or uncertainty in doing it.

But to proceed with the inquiry proposed above: In answer to the argument that the legislature could not, constitutionally, authorize the aldermen of the city, to act as a. board for the purpose of appointing boards of canvassers, beeause they might not be willing to act, we think the contingency referred to hardly sufficient to produce such a conclusion. We are not prepared to say at this time, that they might not be compelled to assemble and act. It is not likely, however, that they would ever refuse.

It is provided in the act, that the board of canvassers in the several districts, shall not be constituted all of one political party. As there is no obligation on any one to adhere for any definite length of time to a professed preference for any political party, the rule or qualification is utterly uncertain in its nature, and, to a great extent, in practice. In times of great excitement and political changes, the rule would exist but in name, while in fact it might not exist at all. It is a proffer of fairness so far as diversity of political sentiment is concerned, without the slightest assurance that it will be so in fact. We cannot, however, correct unwise legislation, and we see nothing in it repugnant to any constitutional provision and it is not expressly prohibited.

But considerations more directly affecting the questions of the ease claim attention. The 13th and 14th sections of the act, prescribe the duties of the canvassers most important to be considered in this inquiry, and these provisions will therefore demand some particularity of notice.

In the first place, the canvassers for the election districts in the city, to be appointed by the board of aldermen, as provided in the 12th section, are required to meet in their respective districts on the first Monday of September, annually, and on that and the two ensuing days “ make out an alphabetical list of all such persons as they shall know to be qualified electors, who have voted at any preceding general election,” &c., designating therein whether the voter is a housekeeper or boarder, and his occupation, and with whom he boards, if not a housekeeper. When this list shall have been completed, it is to be subscribed and sworn to by the canvassers, or a majority, and three copies made, one to be delivered to the city commissioners, one to the board of aldermen, and the third to be retained by the board of canvassers. This list the city commissioners are, on its receipt, to have immediately printed and posted in at least two places in the district, with a “ notice thereon, that the boards of canvassers will meet at the places of holding the general elections, on the twelfth day preceding the general election day, and for two days then next ensuing, for the purpose of revising, correcting, adding to and subtracting from and completing the list.” It will be observed that in making out the primary list, only those citizens are to be registered who are known to the board to be qualified electors “ who have voted at some preceding election.” How this fact is to become known to the board other than personally, is not provided for, and, of course, is left to them to determine. Doubtless it would naturally be construed as resting in their personal knowledge exclusively, as they are bound to make oath to the list as the list of voters known by them. I see not how any other construction is possible, in the absence of any authority to receive evidence of the fact from any other source. On this construction, and I think it the true one, the primary list would necessarily be small, with every disposition to fairness on the part of the board. The personal knowledge of each member would not be likely to extend to any great number of voters; but when the concurrent knowledge of a majority is required, it is fair to presume, if they be conscientious men, that the primary list, in any district, would be but a small proportion of the actual number of constitutionally qualified voters.

This being so, numbers, probably a majority of the electors in many districts, would, in order to be registered and entitled to vote, be obliged to apply to the canvassers, who are to meet on the twelfth day before the day of holding the general election, and on that and the two following days between the hours of 10 A. M. and 7 P. M., of each day, make the proof required by section 14 of the act, in order to procure registration. The provisions on this subject are as follows:

“ Each person so claiming to be entitled to vote therein, shall produce at least one qualified voter of said division, as a witness, of the residence of said claimant in said division for the period of at least ten days, next preceding the general election then next ensuing; which witness shall take and subscribe an affidavit to the facts stated by him; which affidavit shall define clearly the residence of the person so claiming to be a voter; and the person so claiming the rights to- be registered, shall also take and subscribe an affidavit stating where he was born ; that he is a citizen of this commonwealth and of the United States; and if a naturalized citizen, shall also present his certificate of naturalization for examination, unless he shall have been a voter in such election district for five years then next preceding the general election then next ensuing; that he has resided in this commonwealth one year, or if formerly a citizen therein, and has removed therefrom, that he has resided therein six months next preceding the general election then next following; that he has not moved into the division for the purpose of voting therein; that he has not been registered as a voter elsewhere; which said affidavits, both of the claimant and his witness shall be preserved by the canvassers.”

The time for revising this list is to be closed at 7 o’clock p. M. on the evening of the tenth day preceding the general election. Then the canvassers are required to make four copies of the revised list; one for the board of aldermen, which is to be accompanied by the affidavits of the applicants and witnesses; one to the assessors of the ward, who shall thereupon immediately assess a tax according to law, upon every person whose name is contained on said list, and deliver the same to the city commissioners, who shall cause a sufficient number of copies to be printed for the use of the receiver of taxes, one of which they shall deliver to the judges and inspectors of election of the division; and as to this list section 15 provides thus: “ The only evidence that such person has resided in such election division for ten days next preceding such election, shall be the fact that his name is found thereon as hereinbefore provided; and the reception of the vote of any person not so proved shall constitute .a misdemeanor in the election officers so receiving it., and on conviction thereof the election officers so offending shall be subject to a fine not exceeding $500, and imprisonment not exceeding one year, at the discretion of the court.”

How it is possible after 7 o’clock p. m. of the tenth day before the election day, that four lists of the voters of the division, especially in heavy districts, can be made out in time for the assessors of the ward to assess a tax on every person whose name appears on the list, as registered, by the act, before 12 M. of the night of the tenth day before the election, even supposing them bound to be in attendance at some particular spot for the purpose, which they are not, is certainly not easy to comprehend; and without all this be done, the elector must be deprived of his right to vote. Notwithstanding his name might be on the list, still the act requires assessment in all such cases to complete registration. If that should be wanting the process would not be complete; he would not be entitled to vote as a necessary result. This must be so, or the required assessment of all persons whose names were to be placed on the revised list was intended for an unnecessary, idle ceremony. This we are not to suppose. It would require a great degree of credulity to believe that hundreds, nay thousands, of voters in the city would not be deprived of their constitutional rights of electors by this process, abridged in time for execution, as we have shown it would be. The accumulation of affidavits, not oaths merely — the attendance on the board of canvassers, it may be, day after day (for the act contemplates that there may be required three days to revise the list), in hearing applicants for registration, the necessary application by the voter to be assessed, which if made at all cannot be earlier than in the night time of the last of the ten days, after the list shall have been made out; the subjection to the assessment of a tax to complete the process, whether the voter may have previously thereto been assessed, or even paid taxes or not, and the knowledge that after all this, voters will at the polls be subject to be challenged, and all that has been required and proved may have to be proved again — for the fact of registration is conclusive of nothing, it is only its absence which is conclusive, and that against the citizens — are such a succession of embarrassments, if nothing more, as to be equivalent in many cases to a denial of the right of the elector altogether; an overthrow of the guaranty of the constitution, that “ elections .shall be free.” I fully subscribe to what was said by the court in the case of Commonwealth v. Maxwell, 3 Casey 444: “ A law intended to take away, or unnecessarily postpone or embarrass, the right of election would be set aside as unconstitutional. ’ ’ This principle is effected by any unnecessary embarrassment of the rights of the elector. Nor is the evil distinguishable between the consequences of an act intended to embarrass, and one that does embarrass unnecessarily without intending it. In my judgment, this view, if there was nothing else to complain of, ought to set aside this act.

But there are more obvious and clear violations of the constitutional rights of electors in the provisions of the section quoted; and as to these a majority of us fully concur, and mainly rest this decision.

The constitution requires a previous residence, when the citizen offers to vote, of ten days in the district. The act requires ten days residence in order to be admitted to registration, and proof to be made at least ten days before election day. This is a plain requirement of proof of twenty instead of ten days, as required by the constitution. The words of this provision are peculiar. They are: “ The person so claiming to be entitled to vote, shall produce at least one qualified voter of the said division as a witness, of the residence of said claimant in said division for the period of at least ten days next preceding the general election next ensuing.” The witness is to prove a fact which has transpired at the time he subscribes the oath, namely, a residence of ten days. He is not to swear to facts that might raise a presumption that the elector would reside in the district ten days immediately preceding the election, but to depose to his knowledge of actual residence; and that nobody can do unless it has taken place. If, therefore, the witness could affirm to only nine days’ residence in the district when called before the canvassers, the right of registration would not be made out, and although on election day the citizen may have resided nineteen days in the district, he would be deprived of his vote because not on the list. The absence of his name there, is made conclusive against his right. The law, as it stands in regard to proof of residence before the board of canvassers, is incapable of being administered in any other way. No witness would be hardy enough to swear to a residence which had not transpired. It is incapable of proof, and yet it is required.

In The Commonwealth v. Cornish, 6 Binn. 249, it was held that a Witness, undertaking to swear to a fact of which he had no knowledge, is guilty of perjury, although the fact might turn out to be true.

It was admitted on argument by one of the learned counsel for the respondents, and who also admitted an agency in preparing the act, that as it stood it was a mistake — “ a blunder” — but he proposed no remedy which we are competent to adopt. We cannot say that the canvassers shall receive other evidence than that required by the act. In short, it is not possible to prove the constitutional term of residence before it has taken place. If, as suggested, the name appearing on the registry ten days before the election were intended to be evidence that the voter was a resident in the district at the time of registration, why. was proof required of any time before the day of registration ? And if on that day, of course it would be no evidence of continued residence up to the day of election, as required, and would be an idle ceremony merely. The view urged is impossible to be entertained, because the express provisions of the section will not admit of it, and besides, no opinion of any court could insure uniformity in the boards of canvassers on this point, even if the views suggested were possible to be adopted.

Precisely the same difficulty extends to the cases of persons coming to reside in the state, or of returned citizens. Each must anticipate the period of constitutional qualification by ten days’ residence more than is required by its provisions; that is to say, they must prove the constitutional requirement complete, in order to be registered, ten days before exercising the right of voting. This adds to that qualification ten days. One year and ten days in the one case, and six months and ten days’ residence in the other, is the requirement of the act. The proof cannot be made before the board of canvassers in any other way, in accordance with the act, and in this way the requirement is clearly violative of the constitution, which concedes the right to vote if the period of residence be complete at the moment the offer to vote is made.

In regard to persons entitled to vote on age: supposing any provision for registration in favor of that class exists at all, which is doubtful, the proposed voter is to prove, by a qualified voter of the district, his right before it has accrued, if it happens that he will arrive at age less than ten days before the day of election. According also to the terms of the act such a voter, if placed on the revised list, would be subject to be assessed. All on that list are to be assessed — there are no exceptions: This is in direct conflict with the constitution.

In the case of naturalized citizens, whose naturalization papers shall be procured less than ten days before election, they will necessarily be prevented by the act from exercising the rights of electors, because the exhibition of complete naturalization papers to the canvassers ten days before election is indispensable in order to registration. It must be remembered that, according to the act, under no circumstances whatever can any qualified citizen exercise the right of an elector, unless his name be on the registration list ten days before the election, without • subjecting the election ofiicers to fine and imprisonment. Thus all such citizens would be excluded. What shall be the proof on which sons of naturalized citizens are to be registered, is not stated, and of course their rights to registration will depend on the discretion of the canvassers, and be accepted or rejected at pleasure.

It seems inevitable that in all cases where the voter’s qualification becomes complete, according to the constitution, only within ten days before any general election, he cannot be registered from inability to make the proof required by the act, and consequently will be deprived of his right to vote if the act be sustained as constitutional. For these reasons a majority of us concur in holding the act unconstitutional, and of course void. We cannot declare it partially void, because of the special provisions applicable to the city of Philadelphia. Were we so to hold, and were it possible to sustain the balance of the act, it would leave in force the repealing clause which repeals all laws inconsistent with the act, and thus Philadelphia would be without election laws, and her citizens disfranchised. This we cannot do. It must exist as an entirety or not at all. Indeed, independently of this consideration, the same objections exist to the proof necessary to be made in order to registration in other portions of the state, where the names are omitted from the primary lists of the assessors, and application has to be made to be registered, that exist in the 14th section, as applicable to Philadelphia, to which we have referred at length. This clearly appears in the 2d and 3d provisions to the 3d section of the act.

I admit that unwise, and even unfair legislation, if such a thing could be imputed to any act of the legislature, is not necessarily void; yet peculiarities in legislation may be a reason for critical investigation. In examining the act in question, I could not but remark, that although it abounds in penalties, especially in that portion applicable to the city, against violations of its provisions by voters, witnesses and election ofiicers, yet there are none denounced against boards of canvassers for wrongfully refusing to register a voter who may have met every requisition in order to entitle him to be registered. His security the act assumes to be in the oath of the individuals composing the board.

This ought to be sufficient. But the attempted change of the election laws, has its strongest, if not only reason, in the assumption, in some instances no doubt just, that official oaths have been insufficient under existing laws to guard against cheating and frauds in elections. What reason there is to expect that they would be better observed under the new law, is not apparent. No higher qualification for the office of canvasser is required than for a judge or inspector of an election board. The same results may therefore be as reasonably anticipated in the one case as in the other. The securing of fairness is not improved in the provisions on the subject, most certainly.

But I will not follow this train of thought further. I agree that it is always a grave matter to set aside an act of the legislature, and I doubt if there is any instance of its having been done where the people have asked by petition for legislation. They are careful of their constitutional rights. In the case in hand, which is an act of the greatest public consequence, the “Daily Legislative Record,” an official publication of the legislative proceedings, gives no account of petitions of the people for the great change of law attempted; or, so far as the city is concerned, that the act was the work of any committee; but it does show that the provisions of it were ostensibly the work of a single member, presented to the House in manuscript, and without having been printed, passed that House without debate. In this shape it went to the Senate, where it was almost immediately agreed to without the allowance of debate or printing. This may well account for the incongruous and unconstitutional features of the act. These facts, however, have had no weight whatever in producing the result at which we have arrived. They might well stimulate the activity of the scrutiny exercised in examining the provisions of the act, but they had no other effect.

I have not specially noticed the citation of authorities by the counsel for respondents, to prove that registration laws have been held constitutional by the courts of other states. This may be •owing to the peculiarities of the constitutional provisions of those states; but another reason exists for not noticing them. We do not mean at this moment to decide that no constitutional registration law can be enacted. For myself I think there might be, and possibly in such form as to protect the rights of all legal voters, and secure the people, to some extent at least, against the possibility of fraud at the ballot-box. Be this, however, as it may, we are not ready to assent to the act in question as of this character, or within the power of the legislature to pass. This conclusion leaves all the election laws in force which were intended to be superseded by this act. Their provisions are well understood. They have been in operation many years, with but comparatively few complaints, not resulting from the laws themselves so much as from the want of integrity in administering them. This the penalties of the law should remedy. Elections under these laws will therefore impose no hardship, or do any wrong to the people, if conducted as the law requires, and it is in this spirit we ought to expect them to be executed. For these and other reasons which might be given, a majority of us think that the injunction prayed for in each of the bills, should be granted, on the complainants each entering bail in the sum of $1000, to be approved by the court or a judge thereof.

Strong, J.

A registry law might be framed under our constitution. Such a law is desirable. I see but one objection to the constitutionality of the Act of 1868. It is, that it deprives of a vote those who may move into an election district more than ten days prior to an election, but less then twenty. In this particular alone the act is unconstitutional.