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(Constitutional rights of electors.)
An argument in support of the power of the legislature to disfranchise one to whom the constitution has given the rights of an elector, is attempted to be drawn from the practice under the former constitutions, as well as under the present; on examination, however, it will be found to have little weight. The constitution of 1776 ordained, that "every freeman of the full age of twenty-one years, having resided in this state for the space of one whole year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector." It also declared, that any elector who should receive any gift or reward for his vote, in meat, drink, moneys or otherwise, should forfeit his right to elect for that time, and suffer such other penalty as future laws should direct. On the first of April 1778, an act was passed requiring electors to take an oath of allegiance;* but the history of the time shows us that this act was strenuously resisted as unwarranted by the constitution, and within a very brief period it was swept from the statute book. The constitution of 1790 followed; it left out the provision of that of 1776 respecting bribery; but in 1799, an act of assembly was passed enacting the omitted provision in the words used in 1776. Disfranchisement under it was never enforced, so far as I know; and it could hardly have been, for the offence was not complete until the vote was given. Since the constitution of 1838 was adopted, the general election law, passed in 1839, enacted that the votes of persons who wagered on the result of any election should be rejected. None of these acts of assembly have been sanctioned by judicial decision, and they are of little value in determining what the constitution means; uniform legislation might aid us in a case of doubt, but there has been no such practice, and the provisions of the constitution are too plain to be disregarded.
*The first act requiring an oath of allegiance to be taken, as a qualification of an elector, was passed on the 13th June 1777. P. L. 37. Respublica v. Gibbs, 3 Yeates 429.
(Constitutional rights of electors.)
We hold, therefore, that the act of assembly of 4th June 1866 could not disfranchise the plaintiff, and that it did not justify the defendants in refusing his vote. According to the agreement of the parties in the case stated, judgment should have been given for the plaintiff. Judgment reversed and entered for the plaintiff.
AGNEW, J., and READ, J., dissented.
There is no doubt but that the power to regulate the right of suffrage in the states, and to determine who shall or who shall not be voters, belongs exclusively to the states themselves; the constitution of the United States confers no authority upon congress to prescribe the qualifications of electors within the several states that compose the federal union. Huber v. Reily, 53 Penn. St. R. 115; Morrison v. Springer, 15 Iowa 345; Spragins v. Houghton, 3 Illinois 395. It is true, that since this decision, the fifteenth amendment to the constitution has declared that the rights of citizens of the United States to vote, shall not be denied or abridged by the United States, or by any state, on account of race, color or previous condition of servitude; but this is the only exception to the rule; neither the fifteenth amendment nor the act of congress of the 31st May 1870 (16 Stat. 140), to enforce it, interferes with the laws of the several states which prescribe the qualifications of voters, except so far as they are founded upon the distinction of race, color or previous condition of servitude. Ex parte McIllwee, 3 Am. Law Times 251; McKay v. Campbell, 2 Abbott U. S. Rep. 120. With this exception, the power of the several states to regulate the right of suffrage, remains intact. Prior to the passage of the fifteenth amendment, and to the adoption of the constitution of Pennsylvania of 1838, it had been solemnly adjudged in that state, that a negro or mulatto was not entitled to the right of suffrage. Hobbs v. Fogg, 6 Watts 553. In the opinion delivered in that case, the late Chief Justice Gibson states that the same point had been decided by the high court of errors and appeals in the year 1795; Judge Fox, in the court of common pleas of Bucks county, ruled the same question, in the matter of the contested election of Abraham Fretz, on the 28th December 1837, Pamph.; and the word "white" was formally introduced into the amended constitution of Pennsylvania, in the constitutional convention,
(Constitutional rights of electors.)
by a vote of 77 to 45. In Ohio, the law was the same, but all having more than one-half white blood, were considered white persons, and entitled to the right of suffrage. Gray v. State, 4 Ohio 353; Williams v. School Directors, Wright 578; Jeffries v. Ankeny, 11 Ohio 372; Thacker v. Hawk, Ibid. 376; Anderson v. Millikin, 9 Ohio St. R. 568. And this, it seems, was a question to be determined by the election officers. Gordon v. Farrar, 2 Dougl. 411.
In Page . Allen, 58 Penn. St. R. 338, 347, we have another emphatic declaration that no constitutional qualification of a voter can be abridged, added to or altered by legislation. It is there said by Chief Justice Thompson, that "for the orderly exercise of the right resulting from these qualifications, it is admitted, 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 merely, 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 principal subordinate to the accessory; to state, is to prove this position. As a corollary 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." It has been held, however, that a constitutional provision that "elections shall be free and equal," does not require that the regulations should be uniform throughout the state. Patterson v. Barlow, 60 Penn. St. R. 54.
In accordance with the rule laid down in McCafferty v. Guyer, it was held by the court of quarter sessions of Philadelphia county, in Thompson v. Ewing, 1 Brewst. 103, that an act of assembly which provided that an elector who had removed from his district, within ten days of the election, might vote in the district from which he had removed, was unconstitutional and void. And as a consequence of this decision, it is necessary that an elector who has removed from the place of residence designated in the assessment list, should establish affirmatively that he has not removed from the election district. Gibbons v. Shep
pard, 2 Brewst. 3, 129. In State v. Adams, 2 Stew. 239, it was said by the supreme court of Alabama, that no department of the government, nor all of them combined, have the power to divest an individual of the constitutional right of suffrage.
The principle decided in McCafferty v. Guyer, has been recognised by the federal legislature, in several cases, in which it has been held that, the constitution having fixed the qualifications of members, no additional ones could be rightfully required by the states. Barney v. McCreery, 1 Cong. Election Cases 167; Turney v. Marshall, 2 Ibid. 167; Trumbull's Case, Ibid. 618.
CAPEN v. FOSTER.
In the Supreme Judicial Court of Massachusetts.
MARCH TERM 1832.
(REPORTED 12 PICKERING 485.)
A statute requiring that, previous to an election, the qualifications of voters shall be proved, and their names placed in a register, is not to be regarded as prescribing a qualification in addition to those which, by the constitution, entitle a citizen to vote, but only as a reasonable regulation of the mode of exercising the right of suffrage, which it is competent for the legislature to make.
Case Stated. The plaintiff was, on the 4th April 1831, an inhabitant of the seventh ward in the city of Boston, and duly qualified, according to the constitution, to vote at an election for governor, &c.; on that day, he tendered his vote to the defendants, who were the election officers of said ward, but they refused to receive the same, on the ground that the plaintiff's name was not borne on the list of qualified voters of the ward. The statute of 1821 provides for a registry of the legal voters of each ward, and makes it the duty of the inspectors to take care that no person shall vote whose name is not borne on the list of
voters. The constitution prescribes the qualifications of voters, but does not require their names to be borne on any list. If the defendants were justifiable in refusing the plaintiff's vote, the plaintiff was to become nonsuit, otherwise, the defendants to be defaulted.
Blake and Curtis, for the plaintiff.
Pickering, for the defendants.
SHAW, C. J., delivered the opinion of the court. Questions affecting the construction of the constitution of the commonwealth, and the political and civil rights and privileges of the citizens depending on it, are entitled to the fullest and most deliberate consideration, when drawn into judicial discussion; upon a correct decision of these, the security and harmony of our well-balanced system of free and popular government mainly depend.
It has been regarded as a question of doubt and difficulty, whether, upon strict principle, a public officer, who acts honestly and according to the best of his judgment, in the discharge of his duty, and who, through such honest mistake and error of judgment, denies to a citizen his right of voting, should be answerable in an action for damages. But considering the utility of having a plain and perfect remedy, in case of so much importance, and the difficulty which there would be, in bringing questions of this sort to the test of judicial determination, were not each individual citizen permitted to vindicate his own particular right as a voter, before a competent judicial tribunal; and considering that the question of damages will always be in the hands of a jury, who will take care to give slight damages, when the object is principally to settle a really disputed and doubtful right, and when the municipal officers have acted honestly and in good faith, it has been decided, upon great considerations of public policy, that such an action may be sustained. Kilham v.