Morrison v. Springer , 15 Iowa 304 ( 1863 )

Wright, J.

In the second and third case, it is claimed by the appellees and incumbents that the proceedings should have been instituted under chapter 37 of the Revision, and that, as that chapter prescribes the only method fqr contesting elections in this State, the information should have been dismissed. Appellants, on the other hand, claim that the offices of District Judge and Attorney are excepted from “the provisions of the chapter, or, if not, that they have a right to pursue either remedy — that is, to be heard before the tribunal to be organized under said chapter, or by information filed under chapter 51. If it shall be determined that the incumbents are entitled to the offices, the examination of the question here made will become unnecessary. It is, therefore, passed for the present, that we may consider the other and cardinal question, one that arises in all the cases. And this involves an inquiry into the constitutionality of the act of the General Assembly of this State, approved September 11, 1862, entitled “ An act to amend Title 4 of the Revision of 1860, so as to enable the qualified electors of this State, in the military service, to vote at certain elections.”

By this act it is declared, that every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State six months, and of some county therein for sixty days next preceding his enlisting in the military service of this State or of the United States, shall be entitled to vote at all elections authorized by law, as provided therein, whether at the time of voting he shall be within the limits of this State or not. It is also provided that a commissioner shall be appointed to each regiment of Iowa volunteers, for the purpose of carrying out said act. Such commissioners are to be sworn, and are required to-deliver poll books and copies of the law to commanding officers, and to make suitable provision and arrangement for opening the polls and conducting the election. A poll is to be opened at every place, whether within or without the State, where a regiment, battalion, battery or company of Iowa soldiers may be found or stationed, at which all persons may vote who are thereto entitled by law and the provisions of said act, said voting to take place on the day fixed for holding the general election, to wit: the second Tuesday in-October in each year.- Provision is made that every regiment and company on detached service shall have the opportunity of voting. The electors present are authorized and required to choose three judges of election, and these judges appoint the clerks. Each of these officers is required to be sworn. In addition to these provisions, in connection with the act amended (which is declared applicable), the duties of the officers of elections — the method of making the returns — the right to administer oaths to electors — the'.1 penalty for false swearing or illegal voting — for a violation of duty on the part of the commissioner — and all other matters to make the act effective and have it properly executed, are clearly, fully and distinctly pointed out.

It is claimed by the contestants that this act is in conflict with section 1, article 2 of the State Constitution, which reads as follows:

“ Every white male citizen of the United States, of the age of twenty one-years, who shall have been a resident of this State six months next preceding the election, and of ike. county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or may be authorized by law.”

Other States have passed, or proposed to pass, acts having in view the same object as the one under consideration. Some of these are referred to by counsel, and others have been examined by us, and it will be our first business to see how far they assist the solution of the questions involved.

The Constitution of Connecticut provides that the place of holding elections shall be in an electors’ meeting, composed of the electors in the respective towns qualified to vote in the town, duly warned, convened, organized and held for that purpose. Constitution of 1818, and amendments of November, 1886, and petober, 1845. And under this Constitution it was held, we think most properly, and, we may add, in an opinion remarkably clear, plain and able, that it was intended that the vote should be brought in by the elector in person, in an organized electors’ meeting, in the presence of the electors, and there received by the presiding officer. Cpinion by Butler, J., 2 Am. Law Reg. (N. S.), 460. With the reasoning of this case we may have more to do hereafter.

The Constitution of New Hampshire is even more explicit as to the place of voting, to wit: in an electors’ meeting, duly warned and holden, where the votes of the inhabitants are to be received in the presence of the select men in open meeting. And under this it was held that the right of suffrage was to be exercised by the elector in person, at the meetings duly held for that purpose, and that this right could not be exercised by or through an agent or attorney, in the manner contemplated by a proposed act of the General Assembly; for the provisions of which, and the reasoning of the judges, see 2 Am. Law Reg. 2 (N. S.), 140. This conclusion, we remark, is not only clearly warranted by the Constitution, but by the common law-principle that in all public elections every vote must be personally given — a principle which, under our form of government, is not only well recognized, but of vital practical importance.

The Constitution of Wisconsin, § 5, art. 13, declares that: “ All persons residing upon the Indian lands, within any county of the State, qualified to exercise the right of suffrage under this Constitution, shall be entitled to vote at the polls which may be held nearest their residence, for State, United States or county officers; provided that no person shall vote for county officers out of the county in which he resides.'” Under this it has been held that the proviso did not mean to prohibit the voter from being allowed to cast his ballot outside of the county in which he resided, but to prohibit him from voting for officers of a county in which he did not reside. See State, ex rel. Chandler, v. Main (MSS; Op. Sup. Court, Wisconsin, March, 1863.)

In Pennsylvania the constitutional provision is, that: “ In all elections by the citizens, every white freeman of the age of twenty-one years, having resided in this State one year, and in the election district where he offers to vote ten days immediately preceding such election * * * shall enjoy the right of an elector.” Amended Constitution, § 1, art. 3. Woodward, J., in the case of Chase v. Miller (2 Law Reg., 146), in what must be admitted to be a very able and almost exhaustive opinion, holds that the law allowing soldiers to vote outside of the boundaries of the State is in conflict with this section of the Constitution, and is therefore null and void.

So far as we know, these are the only decisions bearing upon the question now before us. And in view of the constitutional provisions of these several States, we hazard nothing in saying that neither of them (unless it may be Pennsylvania) are so so far analogous to our own as to make the decision controlling as authority. In prescribing the time, place and manner of conducting elections, the Constitutions of the several States differ. “ In some, ” in the language of the case above cited from Connecticut, “all are prescribed with that particularity which forbids all action by the Legislature. In others neither are prescribed, but the qualification required of the voter is fixed, and the power to regulate the time, place and manner committed to the Legislature.” Thus in Louisiana it is declared that: “No person shall be allowed to vote at any election held in this State, except in the parish of his residence, and in cities and towns divided into election precincts, in the election precinct in which he resides.” Const. 1852, tit. 2, art. 3.

To the same effect is the Constitution of Kentucky, which declares that the elector shall have certain qualifications, and “ shall vote in said precinct (that of his residence) and not elsewhere.” Const, of 1850, art. 2, § 8.

A similar provision is contained in the Constitution of Illinois, article 6, section 1. The Constitution of Michigan 1850, article 7, section 1, Ohio 1851, article 5, section 11, and California 1859, article 2, section 1, on the other hand,contain no such express provisions or restrictions, and are not so entirely unlike our own.

These brief references to some of the State Constitutions but serve to show how true it is that each State regulates the elective franchise for itself, and that the Legislature thereof is left more or less free, or is more or less restricted by the fundamental law. We suppose it to be a proposition which will not be denied, that where the time, place and manner of holding elections are not prescribed by the Constitution, but committed to the Legislature, the reception of votes out of the precinct or county of the elector’s residence may be constitutionally authorized. It is expressly so held in the case above cited from Connecticut, and this ruling certainly accords with the object and purpose of a State Constitution, and the powers well understood to be possessed by the Legislature; for the Constitution, as applied to the legislative department, is a limitation and not a grant of power. Or, in other words, if the Legislature is not restricted, it has full power to provide who shall have the right of suffrage, and prescribe the time, place and manner of its exercise; for the Legislature clearly has the power to legislate on all rightful subjects of legislation, unless expressly prohibited from so doing, or where the prohibition is implied from some express provision. This theory must never be lost sight of by courts in examining the powers of the Legislature. It is elementary, cardinal, and possesses frequently controlling weight in determining the constitutional validity of their enactments. Where the prohibition is express, of course there can be no exercise of power. So where it is necessarily implied from some express provision, the law-making power cannot interfere.

In either event the Constitution is to be taken as a clear and full mandate, and the Legislature cannot change, extend or control its meaning. Thus, if the Constitution declares that a thing shall be done in a particular manner or way, it is implied necessarily that it shall not be done in any other. To illustrate: if it declares that the votes of the electors shall be cast at a particular place, it is not necessary to prohibit by express words their being cast at any other. But if there is no such express declaration, and none fairly to be implied, it is within the power of the Legislature to fix the place. And this we repeat, upon the principle that the General Assembly possesses ¿11 legislative authority not delegated to the General Government or prohibited by the Constitution. We need hardly remark, to avoid misapprehension, that this general statement of the proposition has no reference to the rights retained by the people as contemplated by the last clause of the first article of the Constitution; for an exposition of which, see The State ex rel. v. The County of Wapello, 13 Iowa, 388.

In view of these authorities and general principles, what construction shall be given to the provision under consideration ? It is observable that the Constitutions of some of the States, and especially the Western States, contain very different language from that found in States East and South. Thus, in the States of Connecticut and New Hampshire, a “ town meeting ” is contemplated, the electors are warned to be present, and their votes are to be cast there in the presence of the selectmen; or, as it is expressed in the Constitution of Massachusetts, the votes are “ to be given in ” at such meeting to the selectmen so presiding. In most of the States South, and some of those West, while no “town meetings ” are provided for, it is clearly and. expressly declared that the elector shall not be entitled to vote except in the county in which he may reside at the time of the election. In addition to those already cited, see Alabama, article 3, 585. In such cases there could remain no reasonable room for controversy, for the affirmative words imply a negative so strongly that the use of negative words was unnecessary; or, in the language of Chancellor Kent, the means for the exercise of a power (or right) are so clearly given or prescribed, that no other or different means could be employed. 1 Com., 515.

The Constitution of this State is not, however, so explicit. There is certainly no express provision like that found in Alabama and the other States referred to, prohibiting the exercise of the right except in the county of the elector’s residence. If no express prohibition, is any necessarily implied?

It is not claimed, nor could it well be, that soldiers in the volunteer service of the Government, by their absence, have lost or changed their residence. It still remains, unless changed by some other act, in the county of their residence at the time of entering the service. If at home, or in the county of their residence, on the day of election, they would unquestionably have the right to vote, if otherwise qualified. Thus far, therefore, there is no difficulty. The inquiry, then, is, whether the Constitution fixes the place of voting (in the county) as a test of qualification, or whether it gives the qualification, and leaves the place of voting to the Legislature.

And the argument is legitimate that, as our Constitution differs from those of other States, there was an object in the phraseology employed. For, when it is remembered that very many States had, before 1857, by their Constitutions, used such express and clear language prohibiting the exercise of the right out of the county or precinct of the voter’s residence, and that our convention had the benefit of such provisions and rights, it is fair to presume that the same or similar language would have been used, if it had been intended to fix the same qualification. The words of the Constitution furnish the test to which the statute is to be brought, and generally all arguments derived from general principles must be addressed to the Legislature or the people, and not to ns. 21 Penn. St. It., 162. And when we find two instruments upon a given subject, one of which clearly forbids the doing of an act or the exercise of a power, while the other contains no such express prohibition, but at the utmost can only be claimed to do so by implication, the fair and legitimate inference is that the words of the latter.were not intended to have the same force and effect as the former. And this is especially true when the latter is made subsequent to and in the light of the former.

But in further examining the very words of the Constitution, let us, if we can, arrive at their meaning. The leading object undoubtedly was to define who should be entitled to vote. First He was to be a white male citizen of the United States. Second. Of the age of twenty-one years. Third. A resident of this State six months next preceding the election. Fourth. A resident of the county sixty days. Now, if it be admitted that the incidents of residence in the State and county inhere in the voter, in the sense that sex, age and color inhere in the person as well as the voter, it by no means follows that the Legislature might not fix, at its discretion, the place where those to whom these incidents attach, or possessing these qualifications, may exerdise the right; for it is admitted that when the Constitution says “white male citizens,” it negatives the right of the Legislature to confer the elective franchise upon females or persons of color. So when it prescribes a residence in the State six months, and the county sixty days, it equally prohibits the conferring the right upon those having a residence of three months and of twenty days. If nothing was said about residence, it would be entirely competent for the Legislature to fix it at one day or five years. But the Constitution, in the language used, intended to declare who should enjoy the right of suffrage, rather than where it should be exercised, and the incident of place, or the place of exercising the right, is not attached as a qualification of the voter.

It is said, however, that he must claim his vote in the county of his residence; that he cannot vote unless, in the language of the Constitution, he is a resident “of the county in which he claims his vote,” and that this necessarily limits the place of the enjoyment of the right. The foregoing views, to some extent, answer this proposition. But we remark further, that the words of the instrument must not be forgotten, added to or “ changed.” What weight should be given, then, to the word claims? Does the assertion of this right, or a claim to exercise it, constitute any part of the qualifications of the voter? In other words, if he is of the right age, sex and color, and has the requisite residence, is he not a qualified voter, though he may not claim to exercise that right ? If so, then how can the claim of a right, already perfect, add to its completeness ? or how can the place of asserting it figure in the qualifications ? Not only so, but to claim a thing is to demand a right, or a supposed right. When the right-is asserted, it is claimed, though it may not be granted. It may be asserted by words, or other means. Etymologically, it by no means implies that place or presence are essential to its potency or completeness. On the other hand, to “offer” to do a thing is to bring to or before — to present for acceptance or rejection — to exhibit something that may be taken or received or not. And hence the argument drawn from the case in Pennsylvania is not by any means conclusive; for while, in the language of Woodward, J., it may be true that to “offer” to vote by ballot is to present one’s-self, with proper qualifications, at the time and place appointed, and make manual delivery of the ballot to the officers appointed by law to receive it, it by no means necessarily follows that the same would be tbe meaning of the word “ claims ” as used in our Constitution. The one does not imply so conclusively as the other the idea of a personal presence in order to assert the right.. But aside from this, we must not forget that the language is not that the voter must claim his vote in the county, but, in speaking of residence, says that it must be in the county sixty days. And the person cannot claim to be an elector in any other county than where he has such residence. This, in substance, is what is meant by the word. “ claims.” If more had been meant,. or intended, it seems to us that other and different language would have been used.

But let us suppose there is doubt as to thó correctness of the above construction — then what is our duty in the 'premises ? The law has been passed by the Legislature, a coordinate branch of the government, acting under like solemn obligations and responsibilities with ourselves — has been approved by the Executive, who has taken a like oath to support the Constitution, — and we are now called upon to declare it invalid. If it is so, in our judgment,- — -that is, if we conclude that the infraction is clear, palpable and plain —then most unquestionably it is our duty to so declare.

On this subject, no court should seek or desire to escape responsibility. The Constitution should be expounded as it is found, and never bent or warped to meet any public exigency. All branches of the government, but courts especially, for the welfare and perpetuity of the government, should carefully and strictly adhere to its letter and spirit.

But while this is all true, while we would, as we have heretofore done, most unhesitatingly declare invalid any law, which in our opinion was clearly obnoxious to the provisions of the Constitution — and while we may be permitted to say that we trust that this power may, in proper cases, be exercised by the courts fearlessly, independently yet always wisely, we cannot forget that among the fundamentals of the law, almost, is the proposition, that “ we can declare an act void only when it violates the Constitution, clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on our minds.” 21 Penn., 162. Lest this may be regarded as stating the rule in too strong language, we refer to Adams v. Howe, 14 Mass., 345, where it is said, that the court when called upon to decide the constitutional validity of a law, will presume in its favor until' the contrary clearly appears. “ So that in any case substantially doubtful, the law would have its force. * * * And the court will never declare a statute void, unless the nullity and invalidity of the act be placed, in their judgment, beyond a reasonable doubt." So, in Kentucky, it is held, that if it be doubtful or questionable whether the Legislature has exceeded its limits, the judiciary cannot interfere, though it may not be satisfied that the act is constitutional. 2 Monr., 178. And to the same effect are the following cases as well as many others: City of Lexington v. McQuillan's Heirs, 9 Dana, 514; Griffith el al. v. Ohio and Indiana R. R. Co., 20 Ohio (appendix, 1); Cooper v. Talfair, 4 Dall., 14; The State of Iowa ex rel. Weir, v. The County Judge of Davis County, 2 Iowa, 280; Telfair v. McGin, 1 Gray, 1; Tyler v. The People, 8 Mich., 333.

In view of this well-settled rule, recognized in the foregoing cases, we feel entirely satisfied as to our duty in the present case. There is certainly a substantial doubt. It is certainly true that we cannot, with conclusive satisfaction, place our finger upon the language of the Constitution which is clearly and palpably violated (5 Mich., 251), and though we might not be satisfied of its constitutionality, yet if not satisfied of its unconstitutionality, it is, our duty to uphold the law. And this view we present, because the law, the power possessed by courts, the-whole current of adjudications, the frame-work of our State government, render it eminently just and sustainable, and with no disposition to shrink from the discharge of duty. As no court should fail, in a proper case, to pronounce against the validity of a law when necessary, neither should it by metaphysical doubts and difficulties defy and overrule the public will, by showing that the power exercised by the Legislature was or might be questionable.

The foregoing considerations dispose of the body of the case. Other parts of it, or points made, are but arguments adduced to show the unconstitutionality of the act, the inexpediency of such legislation, or corollaries from the preceding or main proposition. The length of this opinion forbids that we should examine them in detail.

Briefly we remark, however, that with the expediency of the law we have nothing to do. It is sufficient that the Legislature has declared this as a part of the public policy of the State.

As to .the thought that the convention framing the Constitution never contemplated or “dreamed ” of authorizing a ballot to be taken outside of the State, we refer to what has already been said, and to-the opinion in the Wisconsin case above cited. The argument is there placed in a clear, and to our minds, satisfactory form, and we could not hope to add to its conclusiveness by further elaboration.

But it is also urged that the law has an extra-territorial operation, that the laws of a State can only have operation within its limits, and that as this law provides for the organization of election boards, the holding of an election,

' the administering of oaths beyond the State, or within the jurisdiction of other tribunals, and for the punishment of illegal voting and false swearing in such elections, it is necessarily invalid.

We are not aware that any of the cases cited and relied upon by counsel intimate that a law of this character would be invalid for the reasons stated. On the contrary, one of them, at least (the Connecticut case), as we have already seen, expressly holds that if the time, place and manner are committed to the Legislature, the reception of votes out of the State may be constitutionally authorized. Not only so, but the law is intended to act upon, and give a rule for the government of the citizens, residents or subjects of the State, though they may be out of the State, upon a subject and in relation to a matter which concerns and affects them as such citizens or subjects, and which affects also the sovereignty of this State and in no manner concerns any other jurisdiction. That persons violating the law cannot be punished until they come or are brought, without violation of the rights of another sovereignty, within the territorial jurisdiction of this State, avails nothing, for, as is well said by Bronson, J., in Adams v.The People, 1 Com., 178, this is no more than happens when a criminal escapes after having committed a crime within the State. Jurisdiction, of the offense or subject matter, is a very different thing. And upon this subject, see also Tyler v. The People, 7 Mich., 162; 8 Id., 320; 3 Denio, 190.

But suppose no penalty was provided for false swearing or illegal voting; or that those, if any, guilty in these respects cannot be punished, -does it therefore follow that in a proceeding of this character, we would be justified in declaring the entire act void ? If the Legislature, in the general election law, should fail to provide a penalty for illegal voting, would the result be that the act should have no operation, and that all the votes cast would be illegal ?

It seems to us most clearly not Then, again, in what does such legislation differ from those acts found in all the States, authorizing the appointment of commissioners abroad to take depositions, acknowledge deeds, and the like; as also the taking of depositions in other States, to be used in our courts? Can those swearing falsely iu such cases, be punished in this State ? If not, is the testimony therefore to be rejected. This has never been the holding of any court to our knowledge.

Looking, therefore, in conclusion, to both the letter and spirit of the Constitution, only anxious to view the question as one of legal or constitutional right, discarding all thought of expediency, all considerations touching the justice of the law, as anxious as any other tribunal, that “ a free and honest suffrage ” shall alone be provided for and sustained, keeping in view the great principles and even lesser rules governing our action, we feel constrained to say, “in fidelity to the oath we have sworn,” that this law can be and should be upheld.

The first case is reversed. The other two are affirmed.