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wise. All these are questions of fact, open to proof of various kinds, and sometimes, though rarely, requiring considerable research and investigation. Is there anything in the above-recited provision of the constitution which requires the selectmen so go through this investigation, during the progress of the polling, and whilst many other citizens, whose right is unquestioned, and proved by their names being previously entered on the list, are waiting to give in their ballots and retire? There is no express requirement, and we think there is no implication, arising either from the terms of the constitution, or from the nature and purposes of the right of voting, which obliges the selectmen to perform this duty, whilst in the actual performance of other positive duties, required by the express direction of the constitution, and in the careful, exact and prompt performance of which, the public, the whole body of qualified voters, have a deep interest.
The constitution, by carefully prescribing the qualifications of voters, necessarily requires that an examination of the claims of persons to vote, on the ground of possessing these qualifications, must, at some time, be had, by those who are to decide on them. The time and labor necessary to complete these investigations must increase, in proportion to the increased number of voters; and indeed, in a still greater ratio, in populous commercial and manufacturing towns, in which the inhabitants are frequently changing, and where, of necessity, many of the qualified voters are strangers to the selectmen. If, then, the constitution has made no provision in regard to the time, place and manner in which such examination shall be had, and yet, such an examination is necessarily incident to the actual enjoyment and exercise of the right of voting, it constitutes one of those subjects, respecting the mode of exercising the right, in relation to which it is competent for the legislature to make suitable and reasonable regulations, not calculated to defeat or impair the right of voting, but rather to facilitate and secure the
exercise of that right. And this court is of opinion, that the provision in the general law regulating elections, and that in the act incorporating the city, which require that the qualifications of voters shall be previously offered and proved, in order to entitle them to vote, that their names shall be entered upon an alphabetical register or list of voters, is highly reasonable and useful, calculated to promote peace, order and celerity in the conduct of elections, and as such to facilitate and secure this most precious right to those who are, by the constitution, entitled to enjoy it; that it cannot be justly regarded as adding a new qualification to those prescribed by the constitution, but as a reasonable and convenient regulation of the mode of exercising the right of voting, which it was competent to the legislature to make; and therefore, that these legal enactments, not being repugnant to the constitution, are valid and binding laws, to which both voters and presiding officers at elections, are authorized and bound to conform.
In the manner in which these lists are framed, effectual care seems to be taken to secure the rights of electors. The lists are first to be prepared by the collectors of taxes, and submitted to the selectmen, who are to revise and publish the same for the inspection of all interested; they are to be in session a sufficient length of time, shortly before the election, and for an hour, at least, on the day of meeting, and before the opening of the meeting, to receive evidence of the qualifications of those whose names may have been omitted; nothing, therefore, but the carelessness or neglect of the voter himself, or some accident not attributable to the law, or the officers who are to execute it, can deprive him of the power of proving his right and exercising his privilege; and against these it would be difficult,
* The discretion of determining what is such reasonable regulation is one of those powers which ought never to be reposed in an elective judiciary, holding for a limited term, and dependent for their continuance in office on a partisan endorsement.
either by legal or constitutional provisions, entirely to guard.
It was contended in the argument for the plaintiff, that the act incorporating the city of Boston, and providing for the mode of conducting elections therein, makes no provision for the publication of the lists of voters, prior to each election, so that it is impossible for a voter to know whether his name is borne on the list or not, and that, without any neglect of his own, his right of voting may be defeated, and therefore, that this provision is not a reasonable regulation in regard to the exercise of the right. But we think that the law is not obnoxious to this objection; the act of incorporation (Stat. 1821, ch. 110, § 24) provides that, prior to every election of city officers, or of any officers under the government of the United States, or of this commonwealth, it shall be the duty of the mayor and aldermen to make out lists of all the citizens of each ward, qualified to vote in such election, in the manner in which selectmen and assessors of towns are required to make out similar lists of voters, &c. The amendment of the constitution in 1820, had previously invested the general court with authority to erect city governments, to grant them powers and privileges not repugnant to the constitution, to prescribe the manner of calling and holding public meetings of the inhabitants, in wards or otherwise, for the election of officers under the constitution, and the manner of returning the votes given at such elections. It was, therefore, manifestly within the power of the legislature to provide for the holding of elections in wards.
The act had previously provided (§ 12) that all the powers of the selectmen, either under general or special laws, should be vested in the mayor and aldermen. We have previously seen that it was one of the powers incident to the office of selectmen, to make out lists of voters for their respective towns, previously to each election, and to determine upon the qualifications of voters; there was, therefore, a manifest
fitness and propriety in giving this power to the mayor and aldermen, upon the incorporation of the city. It had a manifest tendency to promote the purity and regularity of elections, that this authority should be vested in one body, for the whole city, instead of being entrusted to the officers of wards; it would tend to promote uniformity in the rules of evidence and of decision upon the claims of voters, and to prevent fraudulent attempts to vote in different wards. To accomplish these objects, however, it was still more necessary, than in towns, that the lists should be closed before the polling commenced. Still, if the provision of this law is such, as to afford the voter no opportunity to know, seasonably, whether his name is on the list or not, it would constitute a serious objection to its validity; but, as already said, we think it is not open to this objection. By the provision already cited, the mayor and aldermen are to make out lists of voters for each ward, in the manner in which selectmen and assessors of towns are required to make out similar lists of voters. This act was passed before the general act, already cited, regulating elections; but, at the time the act incorporating the city was passed, two other acts were in force, making similar provisions in regard to the making out lists of voters, but dividing the duty between the selectmen and assessors. Stat. 1802, ch. 116; Stat. 1813, ch. 68.
It may be a question upon the construction of the clause cited from the city charter, whether, in referring to the manner in which lists of voters are required to be made by selectmen and assessors of towns, it looked forward to such laws as should, from time to time, be passed upon this subject, or whether it regarded the duties of selectmen and assessors, as they were then established by law. To the purposes of the present inquiry, the point is wholly immaterial, because, by the laws as they then stood, and by the act passed in the following year, it was specially required that the lists should be posted up a certain time previous to the election, and that the selectmen and assessors should be in
session, immediately before or on the day of the election, so as to give to every voter the means of knowing whether his name was borne on the list, and opportunity to place it there, if omitted. And we are of opinion, that by this reference to the laws then in force, and by requiring the mayor and aldermen to make up their lists of voters in the manner in which assessors and selectmen of towns are required to make similar lists, all the reasonable and beneficial provisions of those laws prescribing the duties of the officers, and securing the privileges of the voters, were adopted and incorporated in the city charter and became binding and obligatory upon the mayor and aldermen, as effectually as if they had been re-enacted and extended to them in terms. All the remarks, therefore, made before in reference to the reasonableness of these regulations of the right of voting in towns, apply with equal force in regard to the clause in the act of incorporation, regulating the right of voting within the city.
Judgment of nonsuit.
The power to enact registry laws so as to ensure the orderly exercise of the right of suffrage, within the limits prescribed in Capen v. Foster, is now generally admitted; that is, they must be reasonable and uniform regulations, and not, under color of regulating, subvert and injuriously restrain the right itself. But the practical difficulty has been, that a partisan elective judiciary have ever been found ready to sustain a law enacted in favor of their own political friends, as a reasonable regulation, however vexatious and unreasonable it may present itself to an impartial and candid mind, and however subversive it may be of the rights of the minority. This is one of the grand defects in our political system, the vesting of discretionary power in political cases, in an elective judiciary, with a limited tenure of office.
In Page v. Allen, 58 Penn. St. R. 338, the doctrine of the principal case was affirmed by the supreme court of Pennsylvania; a registry law was there held to be unconstitutional on the ground that it impaired the free exercise of the right of suffrage, as conferred by the constitution.