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It is there said by Chief Justice Thompson, delivering the opinion of the court, that "for the orderly exercise of the right resulting from these (constitutional) qualifications, it is admitted that the legislature must prescribe necessary regulations, as to the places, mode and manner, and whatever else may be required to ensure 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 purely, 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. We hold, therefore, what indeed was not expressly denied, that no regulation can be valid, which would have the effect to increase the district or state residence, prior to the time of an offer to exercise the right of an elector, or which would impose other or additional taxation or assessments, than those provided in the constitution." And yet, the same court, in Patterson v. Barlow, 60 Penn. St. R. 54, sustained a registry law, which was as subversive of the rights of the minority, as it is possible to imagine; and held, at the same time, that the constitutional provision that "elections shall be free and equal," did not require that the regulations should be uniform throughout the state; but that the legislature had power to impose more severe restriction upon the exercise of the elective franchise by a portion of the inhabitants, than upon others, in their discretion; a doctrine plainly destructive of the rights of minorities which the constitution was intended to preserve to them; from this judgment, Thompson, C. J., and Sharswood, J., dissented.
Mr. Justice Agnew, who was a member of the convention of 1838, based his argument upon the fact, that when the 3d article of the constitution was under consideration, Mr. Sterigère offered an amendment "that all election laws shall be uniform throughout the state, and no greater or other restrictions shall be imposed on the electors, in any city, county or district, than are imposed on the electors of every other city,
county or district;" and that this amendment was rejected, many of the political friends of Mr. Sterigère voting in the majority. But the learned judge omitted to state, that the democratic members of the convention who voted with the majority, contended in the debate that the amendment was not only out of place, but was unnecessary, inasmuch as the clause in the bill of rights, that "elections shall be free and equal," covered the whole ground, and rendered unconstitutional the Philadelphia registry law of 1836. See 3 Debates in Convention, 29, 32–5, 50, 57, 63-4, 78, 81-2. The constitution of Maryland expressly empowers the legislature to pass a registry law; in that state, the register is evidence of the qualifications of the voter, and no person can be admitted to vote, unless his name appear thereon. Hendesty v. Taft, 23 Md. 512; Anderson v. Baker, Ibid. 531 (ante 27). So also in Louisiana, Auld v. Walton, 12 La. An. 129. In Missouri, State v. Bond, 38 Mo. 425; Ensworth v. Albin, 46 Mo. 453. And in New York, United States v. Quin, 3 Am. L. T. Rep. 182. In Michigan, so strictly is the registry law enforced, that it is held, that where votes were cast by legal voters, who had not been registered, simply because there was no acting board of registration, and therefore, it was impossible for them to comply with the provisions of the law, such ballots were illegal and would not avail the candidate for whom they were given. People v. Kopplekom, 16 Mich. 342. A doctrine utterly subversive of the freedom of the elective franchise, because it puts the power in the hands of unscrupulous election officers, of so manipulating the preliminary proceedings as to make the return of a particular candidate a foregone conclusion. In Wisconsin, it is held, that where there was no registry of the voters of a town, and none of the persons who voted therein furnished the affidavit required by law to entitle the vote of an unregistered person to be received, the entire poll must be rejected. State v. Stumpf, 23 Wis. 630; State v. Hilmantel, 21 Wis. 566. A more just and equitable doctrine, inasmuch as it leaves it in the power of the voter himself, to supply the defect of a previous registry. In Missouri, an election is invalid, unless preceded by a prior registration. State v. Albin, 44 Mo. 346.
For the practical points which have arisen under the registry laws of the states, see Conway v. Aldermen, 2 Brewst. 134; Anon., Ibid. 138; Commonwealth v. Cuncannon, 3 Ibid. 344; Auld v. Walton, 12 La. An. 129; People v. Board of Registration, 15 Mich. 156; State v. Cook, 41 Mo. 593; Boren v. Smith, 1 Chicago Leg. News 170.
EX PARTE MCILLWEE.
Circuit Court of the United States for West Virginia.
(REPORTED 3 AMERICAN LAW TIMES 251.)
The act of congress of 31st May 1870 (16 Stat. 140), does not interfere 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.
Habeas corpus, before Judge Bond, at chambers.
BOND, J. It appears from the return and the evidence in this case, that the petitioner is one of the persons appointed under the laws of the state of West Virginia to register those entitled to vote under the election laws of that state. A certain Winfield Scott Alkire, a white citizen of West Virginia, made application, on the 5th day of August last, to the petitioner, to be registered, and his application was refused, on the ground that he was not qualified to vote under the laws of the state, by reason of his adherence to, or participation in the late rebellion. The petitioner was, therefore, on the affidavit of said Alkire, arrested and brought before a commissioner of the United States, for a supposed violation of the act of congress approved 31st May 1870, and by said commissioner, in default of bail, was committed to answer at the next term of the district court. It appears to me, that this case does not come within the purview of the statute in question. That it was not the intention of congress to abolish the laws of the several states which prescribe the qualifications of voters, or even alter them, except so far as they were founded upon the distinction of race, color or previous condition of servitude,
is sufficiently evident, from the words of the first section of this statute, which declare it to relate to "all citizens of the United States who are or shall be otherwise qualified by law to vote." It cannot be doubted, that the meaning of this language is, that these citizens shall be qualified to vote by the law of the state or territory in which they offer to poll; that these persons, thus "otherwise qualified," shall vote, without distinction of race, color or previous condition of servitude, is the purpose and intent of the statute. It was clearly the duty imposed on the petitioner to inquire into the qualifications of the applicant, and if he found him "otherwise qualified," he was to register him, without distinction of race, color or previous condition of servitude, under the penalty of the act of congress.
The 3d section of this act of congress relates to those citizens, otherwise qualified, who have not been able, by reason of the "wrongful act or omission aforesaid," to do the prerequisite act which entitles the citizen to vote. There is no mention of any "wrongful act or omission," in the 3d section itself; and every rule of construction requires that reference should be had to the previous sections, where we find the "wrongful act or omission," to be, the making, among citizens "otherwise qualified," a distinction on account of race, color or previous condition of servitude. It is not pretended, that the petitioner refused the application of Alkire on this account, and therefore, he is not guilty of the "wrongful act or omission," which makes him amenable to the punishment prescribed in these sections.
The 22d section of the act under consideration relates to the "officers of any election at which any representative or delegate in the congress of the United States shall be voted for." It is not alleged, nor is it true, that there was any election of the kind being held, of which election the petitioner was an officer; he was a mere subordinate officer of registration, from whose judgment there was an appeal, by the laws of the state, to a board of
registration in review. The petitioner, in my opinion, must be discharged, because it does not appear that he is guilty of the violation of the act of congress with which he is charged; and that for the reason that, for his judgment of the qualification of the applicant for registration, under the laws of West Virginia, he is not answerable in a court of the United States.
The same point was decided by Judge Deady, in the district court of the United States for the district of Oregon, in the case of McKay v. Campbell, 2 Abbott U. S. Rep. 120, where it was determined, that in an action to recover a penalty under the 2d section of the act of 1870, it must be averred, that the plaintiff was a citizen of the United States, and otherwise qualified to vote at the time and place mentioned; and that the defendant refused, or knowingly omitted to furnish the plaintiff an opportunity to become qualified to vote, as by refusing or knowingly omitting to swear the plaintiff to his qualifications as an elector; and that such refusal or omission was on account of the race, color or previous condition of servitude of the plaintiff. And in this connection the judge remarked: "I know it may be said, with much probability, that disingenuous judges of election, who are violently averse to and prejudiced against the amendment and the act, may refuse or omit to allow a citizen to qualify himself to vote, ostensibly for some reason not within the purview of the act, but really and in fact, on account of his race, color or previous condition of servitude; but this is a question of fact, and if the evidence be sufficient, the jury will be bound to disregard the pretences of the defendant, and find according to what appears to have been the fact. Besides, to prevent a failure of justice on this account, it may be necessary and proper to hold, in this class of cases, as in many others, that slight proof on the part of the plaintiff, as to the reason of the defendant's refusal or omission, is sufficient to throw the burden of proof, in this respect, upon the latter."
On the other hand, Judge Jackson, in a charge to the grand jury, at the August Term of the district court of the United States for the district of West Virginia, took the ground that the act of congress protects