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Ward, 2 Mass. 236; Lincoln v. Hapgood, 11 Mass. 350. This, therefore, is not now considered an open question.
These decisions, however, apply only to selectmen, whose duty it is, both to determine upon the claim of the voter, and to receive his vote, and who, by refusing to receive his vote, do, at the time, refuse to allow his claim. It, perhaps, may be a different question, whether the same right of action exists against the warden and inspectors of wards, under the city charter, who, as the law stands, are merely ministerial officers, authorized to ascertain the identity of those voters whose names are borne on the lists of voters delivered to them by the mayor and aldermen, and to receive the votes of such persons; by the terms of the act, they have no authority to add any name to the list, or to receive the vote of any person whose name is not on the list, or to consider or determine on the qualifications of any person offering himself as a voter. It may, therefore, be still considered as an unsettled question, under the peculiar organization of the city of Boston, whether the remedy of a citizen, who has been deprived of his right of voting, is by an action against the warden and inspectors, or the mayor and aldermen, or against either of them respectively, as it shall appear, upon the circumstances of each particular case, that the loss of such right has been occasioned by the failure of the one or the other, in the discharge of their respective and appropriate duties.
But the present case has been argued upon ground more general, and entirely independent of the particular organization of the city. The clause in section 24 of the act incorporating the city provides that, prior to every election, it shall be the duty of the mayor and aldermen to make out lists of all the citizens of each ward, qualified, &c., in the manner in which the selectmen and assessors of towns are required to make out similar lists of voters; and it shall be the duty of the mayor and aldermen to deliver such list to the clerk of the ward, to be used by the warden and inspectors, at such election, and no person shall be
entitled to vote at such election, whose name is not borne on such list; and to prevent fraud and mistakes, it is made the duty of the inspectors, to take care that no person shall vote at such election whose name is not borne on the list of voters. These provisions, except so far as they are modified, in order to conform to the peculiar organization of the city, are substantially like those of the general law regulating elections. Stat. 1822, ch. 104, § 2. This provides the manner in which selectmen are required to make out and publish lists of the qualified voters; it then requires that the selectmen or moderator shall be provided with a complete list as aforesaid, at such election, and no person shall vote at any election, whose name shall not have been previously placed on said list. In the particular provision, in regard to which the validity of the law is now called in question, viz. that no person shall vote at an election, whose name is not previously placed on the list of voters, the mode of regulating elections in the city, and in all the towns of the commonwealth, is precisely the
It appears by the facts agreed, in the present case, that the name of the plaintiff was not borne on the list of voters, at the time his vote was rejected, and it does not appear that he had previously examined the lists, or applied to have his name inserted on the lists. By the plain and express terms of the law, the plaintiff, under the circumstances, was prohibited from voting; by asserting the right, therefore, the plaintiff puts in issue the validity of these provisions of the law; and the case of the plaintiff is put upon the ground, that such a provision is a restraint upon the right of voting, inconsistent with the privileges secured by the constitution to the citizens; that these constitutional privileges are above and beyond the control of the legislative power, and that all such laws are, therefore, unconstitutional, inoperative and void. This is the question which the court is now called upon to decide.
On the part of the plaintiff, it is contended, that the
constitution itself has provided the qualifications of voters; that the law in question prescribes a new and additional qualification; that, as such, it operates as a restraint upon the larger privilege allowed by the constitution itself, which cannot be done by an act of legislation. On the other hand, it is argued, that the right of suffrage being secured by the constitution to persons having certain specified qualifications of age, sex, residence, property and contribution to public burdens, it was for the constitution. itself either to direct in detail the time, place and manner in which this constitutional right should be exercised, or to leave this to be regulated by law; that so far as this is done by the constitution itself, in plain terms or by necessary implication, it is binding and conclusive, but where it is not so done, it is competent for the legislature to provide for the exigency, by a law acting uniformly throughout the commonwealth. And this court is of opinion, that in all cases, where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, in a prompt, orderly and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.
A familiar instance of the case of providing by law for the exercise of one of the most important rights of election, is found in one of the earliest acts passed under the constitution. If there be any one portion or member of our frame of government more important than another, it is surely that which provides for an equal representation of the people in the house of representatives; and yet the constitution made no provision in regard to the time and place
at which meetings should be held, how they should be called or regulated, or how the result should be ascertained; it fixed the qualifications of voters with precision, and left all the rest to be regulated by law. Accordingly, within a few months after the adoption of the constitution, an act was passed, reciting this part of it, and that no provision was made for convening the voters, for regulating the meetings, or for making returns of the persons elected, and it then proceeds to make the needful regulations upon this subject: Stat. 1780, ch. 26, since repealed. Here it is manifest, that although the qualifications of electors of representatives were prescribed by the constitution, yet, without a provision by law for regulating the exercise of that right, the constitution itself would be nugatory; it cannot be doubted, that this is a just exercise of the power of the legislature, to provide for the exercise of one of the most important rights of suffrage, and without which the qualified electors would be unable to exercise the right itself, to any useful or effectual purpose.
Another obvious exercise of the same power is found in Stat. 1788, ch. 31, § 3, which provides, that it shall not be lawful for the selectmen or assessors of any town, district or plantation, presiding at a meeting for either of the elections therein recited, including those of governor and lieutenant-governor, senators and representatives, electors of president and vice-president of the United States, and representatives to congress, to receive any vote, unless delivered in writing by the voter in person. As to many of these elections, particularly that of representatives, the constitution is silent upon the question, whether the votes shall be given personally or by proxy, viva voce or by ballot; but for this law, all qualified voters might claim the right of voting vivâ voce or by proxy. But we think it cannot be doubted, that this is a just exercise of legislative power, providing an easy and reasonable mode of exercising the constitutional right, and one calculated to prevent error and fraud, to secure order and
regularity in the conduct of elections, and thereby give more security to the right itself.
That part of the constitution which provides for the election of senators and counsellors, goes more into detail; it directs that a meeting of the inhabitants of each town shall be held on the first Monday of April, annually (since altered to another day), to be called and warned as therein required, and prescribes the qualifications of voters; it then goes on to provide, that the selectmen of the several towns shall preside at such meetings impartially, and shall receive the votes of all the inhabitants of such town present and qualified to vote for senator. Whether under the provision that the selectmen shall preside, and receive the votes of all qualified voters, such selectmen are made constitutionally judges of the qualifications of the voters, or whether it would be competent for the legislature to vest that authority in some other body, it is not necessary now to decide; it seems, that sometimes the legislature have entertained the opinion, that it was competent for them to provide by law for another mode of deciding on these qualifications, by vesting the authority in the towns, or in the assessors. But taking it for granted, that the authority of judging of the qualifications of voters, is, by this provision of the constitution, vested in selectmen of towns, as long as that form of municipal organization remains, which seems the more probable and sound construction of the constitution, still, the constitution is wholly silent in regard to the time, place and manner in which such selectmen shall receive evidence of the qualifications of voters, and how the result shall be ascertained, and the evidence of it manifested and preserved.
The right of any individual person, claiming the privilege of voting, may involve an inquiry into the facts of citizenship, sex, age, domicil within the commonwealth, domicil within the town or district, the payment of taxes, exemption by law from the payment of taxes, and the fact of his being a pauper, or under guardianship, or other