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(Proof of qualification.)
been the reasons and the grounds on which the court decided. The rule, however, in that case, would not be a safe one to follow; nor can it, under the circumstances, be considered of any authority. Under all the facts and views already stated, it would be inapplicable to our condition; and its operation would be in conflict with the principles we have already stated, which time and practice have justly consecrated.
There has been an argument advanced, which it is here proper to notice; it is said, that in case of war, a residentnative of the belligerent country with which we may be waging hostilities, in the act of voting, might be restrained in the exercise of his right as an elector, by virtue of an order of the president of the United States to the marshal of the district, under the act of congress concerning aliens in time of war, to remove such person to some remote point. Admitting the whole extent and force of the argument, it but proves that, under such a state of facts, the right would be an imperfect one; but surely, it does not prove that it is not a right that has been conferred, because of the exception to its exercise in the particular case supposed. The state law gives the right to exercise the power of voting, where the qualifications and means of enjoyment exist; if, from any particular cause, the party is deprived of the exercise of the right, it by no means proves its non-existence. An alien enemy loses the right of prosecuting civil remedies in time of war; yet, in time of peace he is in the full enjoyment thereof; here it might be said, that because there is a suspension of the right, it does not therefore exist, yet, it is certain, that the right, otherwise perfect, is only suspended for particular causes.
There is a portion of the case which ought not, in my judgment, to escape remark; it is the admission by Spragins that he received and counted the elector's vote, believing at the time that he was not a qualified voter: "he himself," says the case, "believing that the constitution and laws of this state not only required a residence
(Proof of qualification.)
of six months, but also, that the person offering to vote should be a citizen of the United States." It will also be seen, that this admission forms one of the strong grounds of the judgment of the circuit court; the third reason given, in the record, for the judgment, is in these words: "That the defendant, in admitting and counting the vote of Kyle, at the election referred to, believing, as it seems he did, at the time it was received, that he was not a qualified voter, was guilty of manifest misbehavior." "The defendant, by his conduct at this election, as shown by the facts presented, is brought within the provisions of the section of the law above recited, and is subject to the penalties therein prescribed." When the character of the punishment of a judge of election, for the admission, knowingly, of the vote of any person not qualified to vote according to law, is seen to be that of a large pecuniary fine, and the rendering of him infamous for ten years, it is not without sensations of surprise, that such a confession is seen placed upon the records of a court of justice, by consent. The officer who has here consented to place himself before the court, in what is esteemed a novel attitude, to use no stronger expression, had taken an oath to perform the duties of judge of the election, according to law, and to the best of his abilities, and studiously to endeavor to prevent fraud, deceit and abuse in conducting the election; and he has, it seems, further consented (under what influences it is not pretended to determine) to acknowledge a pretended breach of that duty, which he so solemnly declared, by an oath, he would scrupulously fulfil. If he conscientiously believed the law and constitution to be, what its text does not import, he should, nevertheless, have acted in accordance with his belief and judgment, and refused the admission of the vote tendered. It will not be presumed that this confession, so extraordinary in its character, has been made for the purpose of subserving any particular end, or the accomplishment of any particular object or purpose; but,
(Proof of qualification.)
most assuredly, the inferences cannot but be peculiar in their nature; and the expression, that this part of the case had better have been omitted, cannot be withheld.
After the most careful examination and consideration of the questions raised, the conclusions arrived at are, that Jeremiah Kyle was a person legally qualified, under the constitution and laws of the state of Illinois, to vote at the election specified in the agreed case; and that the judgment of the circuit court, which decided that Kyle, in order to be entitled to vote at such election, should have been either a native or naturalized citizen of the United States, at the time of the presentation and reception of his vote, is erroneous and not warranted in law, and ought to be reversed.
LOCKWOOD, J. I concur in the opinion that the judgment below ought to be reversed, for the following reasons: It appears in the agreed case, that Spragins was sued in the court below, as one of the judges of the election, for the penalty of $100, given by the 23d section of the "act regulating elections," passed the 10th January 1829; that section provides that "if any judge of the election, clerk or other officer or person concerned in conducting the election, shall knowingly admit any person to vote, not qualified according to law, each and every such person, so offending, shall forfeit and pay to the county the sum of one hundred dollars," &c. R. S. 253-4; Gale's Stat. 265.
The agreed case admits that one Kyle voted, at the general election in 1838, for governor and other officers, and that Kyle was a foreigner and had not been naturalized under the laws of congress, but had resided in the county of Jo Daviess, where the vote was received, for more than six months immediately preceding the election; the case further admits that Spragins acted as a judge of the election, and knew that Kyle had not been naturalized, yet received his vote; it is also admitted, that Spragins be
(Proof of qualification.)
lieved that Kyle was not a qualified voter, according to the constitution and laws of this state, because he had not been naturalized. In ordinary civil actions, where a defendant admits that he is guilty, such admission would justify the court in giving judgment against him; but this is a highly penal action, and if the defendant is guilty, in addition to a fine of $100, he is, moreover, on conviction, rendered incapable of holding any office within this state, for the term of ten years thereafter. The admission appears to have been made, with a view to elicit from this court, a construction of the constitution and laws of this state, in relation to the right of aliens to vote. This renders it necessary to decide, whether Spragins, in suffering Kyle to vote, without challenging him, has subjected himself to the penalty of $100, and disfranchisement for ten years.
The 12th section of the act regulating elections provides, that "when any person shall present himself to give his vote, and either of the judges shall suspect that such person does not possess the requisite qualifications of an elector, or if his vote shall be challenged by any elector who has previously given his vote at such election, the judges of the election shall tender to such person an oath, or affirmation, in the following form: I, A. B., do solemnly swear (or affirm, as the case may be) that I am a resident of the county of in the state of Illinois; that I have resided in this state for the period of six months immediately preceding this election; that I have, to the best of my knowledge and belief, attained the age of twenty-one years, and that I have not voted at this election.' And if the person so offering his vote, shall take such oath or affirmation, his vote shall be received, unless it shall be proved, by evidence satisfactory to a majority of the judges, that such oath or affirmation is false; and if such person refuses to take such oath or affirmation, his vote shall be rejected." R. S. 246-7; Gale's Stat. 263. These are all the provisions contained in the act, in relation to the qualifications of voters.
(Proof of qualification.)
Did Spragins, then, in receiving Kyle's vote, violate this section of the law, so as to subject him to the penalty contained in the 23d section of the act? I think not, for the reason, that it is agreed, that Kyle was a resident of Jo Daviess county, and had resided in the state for more than six months immediately preceding the election. Had Kyle been challenged, he would only have been required to swear to what is admitted to be the fact by the agreed case; a challenge, then, by Spragins, was wholly unnecessary, and would have been an act of supererogation on his part. If Kyle had taken the oath, and it appears he could safely have done so, the judges of election would have been compelled to receive it; they have no discretionary power, for the law is imperative, that the vote shall be received, unless evidence is produced that it is false. This falsity can only be proved to exist, by showing that the person offering to vote has not resided in the state for six months immediately preceding the election, or that he is not twenty-one years of age, or that he has voted before at the election.
Whether the person offering to vote is an unnaturalized foreigner, is a question which the judges of election have no right to investigate, under existing laws. If the voter comes within the letter of the law, the duty of the judge is plain. There is no ambiguity in the word "resident;" every man is a resident who has taken up his permanent abode in the state. The question, then, whether Kyle was an inhabitant, and entitled to the right of suffrage, within the meaning of that word in the constitution, is not a subject of inquiry by the judges of the election. I am, therefore, of opinion, that Spragins, in admitting Kyle to vote, has not violated the statute, and is, consequently, not liable to the penalty. On the constitutional question, whether unnaturalized foreigners, who are permanent residents of the state, have a right to vote, I forbear to express an opinion, as I believe, while our election laws remain as they are, the judges of election are bound to receive the