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(Place of voting.) word of legislation having ever said it should be so considered. Nay, not only has no legislation authorized this last assumption, but this very 43d section has excluded it, by declaring that the soldiers entitled to vote at the places appointed by military commanders should be “qualified citizens.” A constitutional argument which rests on

. such assumptions can never be formidable.

When a soldier returns to his election district, he resumes all the civil rights of citizenship, and his residence being unimpaired by his temporary absence, he has a right to vote on election day; but under the constitution, to which his fealty is due, he can acquire no right to vote elsewhere, except by a change of residence from one district to another.

The repugnancy of the 43d section to other sections of the same statute, is as gross as its inconsistency with the constitution. It says, the “citizens of this commonwealth qualified as hereinbefore provided,” shall have the peculiar right of suffrage, which is claimed in this case to be constitutional. This word “hereinbefore" is a reference to prior sections of the same statute; but the qualifications for suffrage are not contained in any prior section; another instance of careless legislation. It is not till we get to the 63d section that we come to the subject of qualifications; the 63d section re-enacts the first section of the third article of the constitution in terms. · If we read the word “hereinbefore," as if it were written “hereinafter, or if we construe it as referring to the constitutional clause of qualification (and in one or the other of these ways it must be taken), it comes to the same thing—a demand for the constitutional qualifications of suffrage in every soldier who claims to vote under the 43d section. It says, in effect, that the soldiers who offer to vote in the election district wherein they have resided ten days immediately preceding the election, shall be entitled to vote in any place their commander appoints, provided it be not within ten miles of the district wherein they have resided for the last ten

(Place of voting.) days; which is downright nonsense. Yet such is the effect of the words “qualified as hereinbefore provided," when taken in connection with the other parts of the section; they turn the whole section into jargon.

The 63d section declares, that “no person shall be permitted to vote at any election” provided for by the act, except he possess the constitutional qualifications which have been already expounded. The 67th section declares that every person qualified as aforesaid “shall be admitted to vote in the township, ward or district in which he shall reside;" and the resolution of 26th April 1844, provides for a person who removes from one ward, borough or township to another, within ten days before the election, and gives him a right to vote in the ward, borough or township from which he has removed.* These legislative regulations of residence in districts, are in accordance with that interpretation of the constitution suggested above, and show clearly how essentially the place of voting has entered into the qualifications of suffrage. The negative words of the 63d, and the affirmative words of the 67th, are very emphatic expressions of the constitutional rule in respect to the place of voting.

Whilst speaking of the legislative control of election districts, it may be proper to advert to a fact stated in argument, that voters resident in the township of Wilkesbarre, which is an election district, are accustomed to vote in the borough of Wilkesbarre, which is a separate election district, and other similar instances are said to exist in Luzerne county, where votes are actually cast in an election district adjacent to that in which the electors reside. If this practice have the sanction of an act of assembly, it is defensible;t if it have not, I know of no

* This resolution of 26th April 1844 was declared unconstitutional in Thompson o. Ewing, 1 Brewst. 103. And see McDaniels' Case, 3 Penn. L. J. 314 (post 238).

Sed quere? It would seem, that such an act would be unconstitutional.

(Place of voting.) principle on which it can be excused, except that of communis error.

And this is all that we feel called on to say in regard to it, for it is not a circumstance of sufficient magnitude or importance to disturb the course of our argument, or to attract further notice.

To all these sections, the 43d, as construed in the court below, is directly repugnant. It is repugnant also to all those numerous provisions of the act which require peace officers, on demand of an election officer, or of three citizens, to preserve free access to the polls, and to suppress disturbances and riot; which forbid wagering and misconduct at the polls, and which prohibit all troops, “either armed or unarmed,” from attending at any place of election within the commonwealth. The 43d section is in direct antagonism to all of these reasonable and conservative provisions. It permits the ballot-box, according to the court below, to be opened anywhere, within or without our state, with no other guards than such as commanding officers, who may not themselves be voters, nor subject to our jurisdiction, may choose to throw around it; and it invites soldiers to vote where the evidence of their qualifications is not at hand; and where our civil police cannot attend to protect the legal voter, to repel the rioter, and to guard the ballots after they have been cast.

It is scarcely possible to conceive of any provision and practice that could, at so many points, offend the cherished policy of Pennsylvania in respect to suffrage. Our constitution and laws treat the elective franchise as a sacred trust, committed only to that portion of the citizens who come up to the prescribed standards of qualification, and to be exercised by them at the time and place, and in the manner, pre-arranged by public law and proclamations; and whilst being so exercised, to be guarded, down to the instant of its final consummation, by magistrates and constables, and by oaths and penalties; all of which the 43d section reverses and disregards, and opens a wide door for (Place of voting.) most odious frauds, some of which have come under our judicial cognisance.

It is due to our citizen-soldiery to add, however, in respect to the cases of fraud that have been before us, that no soldier was implicated. The frauds were perpetrated, in every instance, by political speculators, who prowled about the military camps, watching for opportunities to destroy true ballots and substitute false ones, to forge and falsify returns, and to cheat citizen and soldier alike out of the fair and equal election provided for by law. And this is the great vice of the 43d section; that it creates the occasion and furnishes the opportunity for such abominable practices. This would be a reason, drawn from our experience of the last half year, for construing it strictly, if strict construction were required. But it is so palpably in conflict with the constitution, and so repugnant to all the substantial parts of the enactment into which it was heedlessly thrust, that no strictness of construction is called for. Taking the section as it stands (as every reader, whether clerk or layman, would understand it, or as the learned judge below administered it), we hold it to be subversive of the amended clause of article 3d of the constitution, and also of the constitutional sections of the general election law of 2d July 1839.

Having now examined fully the grounds and extent of our jurisdiction, and having stated the meaning of both the constitutional amendment and the enactment in question, and thus developed the irreconcilable antagonism between them, it remains only that we notice briefly some of the most prominent arguments that have been urged in support of the enactment. The learned judge refers himself to several cases, in which this court have set up judicial implications as to the spirit and meaning of the constitution, in order to support acts of assembly that were inconsistent with the letter of the constitution; but he failed to observe that, in all these cases, there was ground laid in the constitution itself, to support the judicial im(Place of voting.) plication. Take, for example, the acts of assembly that were discussed in Zephon’s Case, 8 W. & S. 382; Kilpatrick's Case, 31 Penn. St. R. 198; and Foust's Case, 33 Ibid. 338; all of which were supposed to conflict with that provision of the constitution which requires the president judge of the common pleas to be one of the quorum of the court of oyer and terminer. Everybody knows that the constitution betrayed an anxiety that the trial of high crimes should be presided over by a judge “learned in the law,” and as it provided for no such judges, except in the instance of the president of the common pleas, it, therefore, required him to be present in the court of highest criminal jurisdiction. But when the legislature provided associate judges “learned in the law,” for certain courts of common pleas, everybody saw how the overruling purpose of the constitution would be just as well carried out, by allowing such associates to constitute the oyer and terminer, as by requiring the president judge to be always present. Founding the judicial implication on the manifest intent and purpose of the constitution, the acts of assembly were held constitutional.

So, in the instance discussed in Commonwealth v. Maxwell, 27 Penn. St. R. 444, the choice of judges by popular election was seen to be the policy and purpose of the constitution; but the constitution could not regulate the details of such an election, and therefore referred them to the legislature to regulate. The legislature, considering that three months was none too much time for the people to look up a good judge, provided that if a vacancy occurred in less than that time before the annual general election, the choice should be postponed till the general election of the next year; the vacancy being filled, meantime, by executive appointment. We held the act of assembly constitutional, because it aimed at the accomplishment of one of the great and apparent purposes of the constitution. We would not consider the interval of three months unreasonable, because it was the very period which the constitution

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