Chase v. Lujan , 48 N.M. 261 ( 1944 )

We are asked to determine whether the cases of Thompson v. Scheier, 40 N.M. 199, 57 P.2d 293, and Baca v. Ortiz, 40 N.M. 435, 61 P.2d 320, should be overruled to the extent each holds that the Const., Art. 7, § 1, requires the personal presence at the polls of an otherwise qualified elector when he offers to vote.

The question is presented in a suit for a declaratory judgment filed by the Attorney General in the District Court of Santa Fe County, suing on behalf of the registered and qualified voters of said county who are absent from the state in the military or naval service of the United States and desirous of voting in the ensuing general election. The County Commissioners and County Clerk are made defendants and it is alleged they will refuse to carry out the provisions of 1929 Comp., §§ 41-333 and 41-336, L. 1927, c. 41, known as an absentee voting law, to the loss of their right to vote by those for whom plaintiff sues and others similarly situated, unless the court declare same constitutional. This is the first cause of action set up in the complaint. For a second cause of action and as a corollary to the first, it is alleged a like result will follow unless the court declare validly adopted a proposed amendment of Art. 7, § 1, of the constitution submitted in 1920, authorizing the legislature to enact laws governing voting by citizens absent in the military or naval service of the state or nation.

The defendants moved to dismiss the complaint upon the ground that both questions alleged to be controversial between the parties already had been before the Supreme Court of this state and each decided contrary to the contention of the plaintiff. The trial court after hearing arguments sustained the motion and dismissed the complaint. This appeal followed.

Although the defendants both answered and moved to dismiss, in neither pleading did they suggest a want of jurisdiction in the district court to entertain the proceeding as a suit for a declaratory judgment, either for want of a proper party plaintiff or for lack of an actual controversy. Nevertheless, the trial judge expressed grave doubt whether an actual controversy existed but in order to facilitate the determination of a matter of great public importance entertained jurisdiction with the result already stated. We share the doubts of the learned trial judge, especially on the right of the Attorney General to appear as a party plaintiff. In view of the great public interest in the question raised, not only in New Mexico but throughout the nation, we shall not scrutinize too closely the plaintiff's capacity to sue. Cf. State ex rel. Capitol Addition Building Commission v. Connelly, 39 N.M. 312, 46 P.2d 1097. Nevertheless, we shall not deem the fact that jurisdiction is entertained in this case as a precedent for settling future narrow cases of jurisdiction under the declaratory judgments act. We approach the matter here in somewhat the same spirit as did the Supreme Court of New Jersey in Re Freeholders of Hudson County, 105 N.J.L. 57,143 A. 536, 537, from whose opinion we quote approvingly, as follows:

"In view of the fact that the public is vitally interested and affected by the statute and an election is near at hand, an urgency has arisen for a speedy pronouncement by this court as to the validity of the act, and as counsel of the respective parties have been heard upon the merits of the case and submitted the same to the court, sitting in banc, for determination, we have suspended consideration of the question as to the legal propriety of the procedural form in which the matter is presented."

The question presented when viewed in the light of the two decisions first above mentioned reduces itself within a very narrow compass. Art. 7, § 1, of our constitution, dealing with the elective franchise, among other things, provides:

"§ 1. Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election * * * shall be qualified to vote at all elections for public officers. * * *

"The legislature shall have the power to require the registration of the qualified electors as a requisite for voting, and shall regulate the manner, time and places of voting. The legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration and not more than two judges of election shall belong to the same political party at the time of their appointment." (Emphasis ours.)

When our constitution was adopted there was in force in New Mexico a territorial law of long standing requiring the personal presence of the voter at the polls and the manual delivery of his ballot to the election officials, reading as follows:

"All votes shall be by ballot, each voter being required to deliver his own vote in person." L. 1851, p. 196, Code 1915, § 1999.

Other territorial statutes then in effect and employing the phrase "offer to vote" or other language of similar import (italicised by us in the quotations) are as follows:

"When any person offers to vote, whose qualifications are not personally known to any of the judges, he may be examined under oath as to said qualifications and those who take a false oath shall suffer the penalty prescribed by law for perjury." L. 1851, p. 196, Code 1915, § 2006.

"Every person who is not a native citizen of the United States, or adopted citizen of this State, who may present himself tovote at any election in this State, shall be examined by the judges of election, in whose precinct he may apply to vote, and proving to the satisfaction of the said judges that he has legal letters of naturalization or of citizenship, he shall be allowed to vote; but should there still exist doubts of his right to vote, they shall act in accordance with the provisions of section 2018." L. 1854-55, p. 142, Code 1915, § 2017.

"That it shall hereafter be unlawful for any person who is not a qualified elector, to vote, or to offer to vote at any election held in this State, or to register or offer to register as a voter; and it shall be unlawful for any persons to register or offer to register, or to vote or offer to vote in the name of another person; * * *." Code 1915, § 2055.

"If any person is refused registration by the judges of registration, he may make and present to the judges, his affidavit in writing, setting forth that the affiant is a citizen of the United States, that he has resided in the State of New Mexico for the twelve months next preceding, in the county for ninety days next preceding, and in the precinct in which heoffers to register, for thirty days next preceding the next ensuing election, and that he is not disqualified for any reason from being registered as a voter and from voting at said election; * * *." 1915 Code, § 1964, L. 1889, c. 135, § 12.

What we were called upon in the two cases mentioned to decide and what we now are asked to re-examine for the purpose of ascertaining whether we correctly decided it, is this: When the phrase "offers to vote" is employed in the portion of Constitution Art. 7, § 1, quoted hereinabove, is the personal presence of the voter contemplated in making the offer? We so held in Thompson v. Scheier and Baca v. Ortiz. The matter was thoroughly considered when it first was before us in the Thompson case and the conclusion announced in a unanimous opinion was deliberately reached. Within six months the question again was presented in the Baca case, re-examined and the decision reached in the former case adhered to in another unanimous opinion. Were we right in so holding? That is the single question asked of us to which after further painstaking consideration we feel compelled to give an affirmative answer.

It will be seen from an examination of the foregoing statutes that in at least four separate instances our territorial legislature had employed the phrase "offer to vote" or its equivalent in a sense unmistakably indicating and meaning a "personal" offer to vote or register, a conclusion rendered certain by the mandatory statutory requirement that each voter shall "be required to deliver his own vote in person." Code 1915, § 1999. Significantly, too, the language chosen by the framers of our constitution for stating the qualifications of a voter finds its nearest counterpart in L. 1889, c. 135, § 12, Code 1915, § 1964, setting forth the qualifications upon registering to vote. In order to indicate the similarity in the language chosen, we set forth the same in parallel columns as follows:

"§ 1. Every male citizen of the "If any person is refused registration United States, who is over the by the judges of registration, he may age of twenty-one years, and make and present to the judges, his has resided in New Mexico twelve affidavit in writing, setting forth that months, in the county ninety days, the affiant is a citizen of the United and in the precinct in which he States, that he has resided in the Stateoffers to vote thirty days, next of New Mexico for the twelve months next preceding the election * * * shall preceding, in the county for ninety days be qualified to vote at all next preceding, and in the precinct in elections for public officers which he offers to register, for thirty * * *." (Emphasis ours.) days next preceding the next ensuing election, and that he is not disqualified for any reason from being registered as a voter and from voting at said election; * * *." (Emphasis ours.)

The foregoing territorial laws furnished the historical background in the use of the phrase "offer to vote" in our constitution at the time we considered what was meant by the phrase in Thompson v. Scheier. Naturally, we turned our attention to the construction given those words in other constitutions at the time we used them in our own. Upon doing so, we found that insofar as such language had been construed at all by the courts of sister states, it invariably had been held to require a personal appearance of the voter and the manual delivery of his ballot to the election officials. See Chase v. Miller, 41 Pa. 403, and People v. Blodgett, 13 Mich. 127. Relative to the state of the law on this point, we stated in Thompson v. Scheier [40 N.M. 199, 57 P.2d 304] the following, to-wit:

"The Constitutional Convention adopted a provision, the language of which had been construed by some of the ablest courts of America, and its terms were invariably held to require the voter to personally deliver his ballot at the precinct polls of his residence; and only since the adoption of the New Mexico Constitution has any court decided differently. Jenkins v. State Board of Elections, 180 N.C. 169, 104 S.E. 346, 14 A.L.R. 1247; Jones v. Smith, 165 Ark. 425, 264 S.W. 950; Straughan v. Meyers,268 Mo. 580, 187 S.W. 1159. The statutes of New Mexico had for 60 years so provided; * * *."

When our territorial legislature in 1851 enacted the express statutory requirement that the voter must be present in person and make manual delivery of his ballot to the election officials, it was merely giving expression to the rule of the common law on the subject. 29 C.J.S., Elections, p. 297, § 210; State v. Rinehart, 140 Fla. 645, 192 So. 819; People v. Blodgett (opinion of Christiancy), supra; and In re Opinion of the Justices,80 N.H. 595, 113 A. 293. In 3 Sutherland Statutory Construction, 3d Ed., p. 9, § 5303, appears a discussion of the subject "Words and Phrases Having a Well Defined Common Law Meaning." The author states: "Words and phrases having a well defined meaning in the common law are to be interpreted in the same sense under the statute when used in connection with the same or similar subject matter with which they are associated at common law." The author appends a number of illustrations and citations under Note No. 1 supporting this statement. Among them is Territory v. Cutinola, 1887, 4 N.M. 305, 14 P. 809, 810. In that case our Territorial Supreme Court was considering what a New Mexico statute meant by the use of the word "information". It said:

"The statute does not undertake to define an information, or prescribe its form or contents. We must therefore look to the common law to ascertain what it is and what its requisites, in the particular question, are."

In 59 C.J., Statutes, p. 1041, § 619, in discussing construction with reference to other statutes, the author states: "The meaning of doubtful words in one statute may be determined by reference to another in which the same words have been used in a more obvious sense."

Somewhat this same thought is expressed in People v. Blodgett, supra, where the term "legislature" as used in a constitutional provision was held to mean the legislature eo nomine as known in the political history of the country.

Thus confronted in Thompson v. Scheier with the employment in the constitution of a phrase having a well defined and generally understood meaning in New Mexico for nearly sixty years and met with a construction as of that date by the highest courts of sister states which conformed to that definition, and supported as well by a common law rule based on immemorial usage which would give to the phrase "offer to vote" the meaning of personal presence in connection with the offer, we held that when the framers of the constitution used it and when the people adopted it, the words carried the only meaning with which the framers and the people were familiar and had been familiar for more than half a century. In other words, we held that when the framers of the constitution, possessed as they were with a knowledge of what the words "offer to vote" meant, appropriated the phrase from the territorial laws and employed it in the same connection in the constitution, they transplanted the meaning as well as the words and wrote that meaning into the constitution. Such were the views entertained by us when the Thompson and Baca cases were decided. We are not persuaded that such views misinterpret the true intent of the questioned language as used in our constitution.

We are not unmindful that New Mexico constitutes one of a very small minority among the sisterhood of states in which absentee voting is not authorized under constitutional provisions. We may assume the correctness of the Attorney General's appraisal that, from the standpoint of numerical superiority, the weight of authority since the adoption of our constitution supports a different construction of the language involved from that which we have given it. But, as said in Thompson v. Scheier, at the time we adopted our constitution, the only courts that had been called upon to construe the identical language, Michigan in People v. Blodgett, supra, and Pennsylvania in Chase v. Miller, supra, had given it the same meaning we gave it and that no court had construed it differently. That statement was made deliberately and it still holds good.

Any suggestion that the so-called Civil War cases sustaining absentee voting under their respective constitutions had construed identical or even substantially the same language differently simply results from a total misapprehension of the language of those opinions and the constitutional provisions involved. The opinions referred to are Morrison v. Springer,15 Iowa 304; Lehman v. McBride, 15 Ohio St. 573; State ex rel. Chandler v. Main, 16 Wis. 398, 422. The Wisconsin court in the Chandler case agrees, at least inferentially, that Chase v. Miller was correct in holding that the phrase "offers to vote" in the Pennsylvania constitution requires the personal presence and manual delivery of his ballot by the voter, but states the two provisions of the respective constitutions are totally different. The Ohio court in the Lehman case commented on the decision in Chase v. Miller and on the language "offers to vote" being construed, and concluded that "the absence of any such clause in our state constitution, renders this decision inapplicable in the case before us." The Iowa court in the Morrison case was construing the phrase in their constitution, "in which he claims his vote." In reaching the result it did, it differentiated between the meaning of the phrase "to claim" and "to offer."

It thus will be seen that these three courts themselves made no claim that the Pennsylvania court had erred. In fact, at least two of them approved its decision and the other, the Iowa court, does not criticize it. It merely shows that its constitution was different from that of Pennsylvania and that there was a difference in meaning between the phrases "claims his vote" and "offers to vote".

Repeatedly, do the minority remind us that the so-called Civil War cases, whose construction we adopted, are eighty years old! What of it, if they rest on sound reason? Since when have truth and reason depreciated with age? It will not do, in effect, to call these cases "old fashioned" and out of step with a small numerical superiority in number of cases since decided, unless the reasoning of the older cases can be successfully challenged. This has not been done in any of the later decisions, nor in any one of them is there raised a single argument in support of the results they announce that was not put forward in either People v. Blodgett, supra; Chase v. Miller, supra; or Bourland v. Hildreth, 26 Cal. 161, carefully considered and fully answered. These cases were decided by great courts with personnel of eminent judges and exhaustive opinions were written which reflect profound consideration of every question decided. No case since decided has even approached these earlier decisions in either the deep understanding displayed of the questions decided or the logic with which such questions were resolved. Nevertheless, they merely justify as precedents the correctness of a conclusion which seemed obvious when we came to find meaning for the words "offers to vote" in the light of their historical background. Our faith in the correctness of these older precedents remains unshaken.

At the time our opinion in Thompson v. Scheier was written (May 1936), the Supreme Court of Pennsylvania (1924) in Re Contested Election in Fifth Ward, 281 Pa. 131, 126 A. 199, 35 A.L.R. 815, following Chase v. Miller, supra, had given the questioned language the same construction we gave it. The following cases had decided the question contrary to our decision: Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159, decided in 1916; Jenkins v. State Board of Elections, 180 N.C. 169, 104 S.E. 346, 14 A.L.R. 1247, decided in 1920; Goodell v. Judith Basin County, 70 Mont. 222, 224 P. 1110, decided in 1924; Jones v. Smith, 165 Ark. 425,264 S.W. 950, decided in 1924; Moore v. Pullem, 150 Va. 174,142 S.E. 415, decided in 1928; and Bullington v. Grabow,88 Colo. 561, 298 P. 1059, decided in 1931. The only case decided adversely since Thompson v. Scheier is Lemons v. Noller,144 Kan. 813, 63 P.2d 177, decided in December, 1936. A full and rather complete annotation on the subject will be found in 14 A.L.R. 1256, supplemented as follows: 19 A.L.R. 308; 35 A.L.R. 819; 121 A.L.R. 989; 132 A.L.R. 374; 140 A.L.R. 1100; and 147 A.L.R. 1443.

We had before us and considered in our opinion all of the prior decisions listed hereinabove except Moore v. Pullem and Bullington v. Grabow, which either were not called to our attention or escaped notice in the preparation of our opinion. We gave due consideration to the arguments advanced in these cases at the time the Thompson case was decided. We were not unaware of the fact that they had decided differently the very same question before us, some of them taking into account other constitutional provisions not present in our own. We simply felt, and still feel, that with the historical background presented by the questioned language found in our constitution, the result we announced was the better supported in reason and logic and the more nearly approximates the intent of the framers of our constitution. We have had no decision called to our attention holding adversely to our conclusion where the court had under consideration a historical background of such richness and strength on the meaning of the questioned language as a basis for its decision.

Much is said arguendo on the views entertained about the question here presented by eminent members of Congress when that body was considering our proposed constitution. Nothing has been brought to our attention even mildly suggesting that the Congress gave this subject the slightest thought. In any event, time is more properly and profitably spent in ascertaining the intent of our own people in adopting, and of the framers in submitting, this provision of the constitution — not what the senator from New Jersey or the gentleman from New York may have thought about it, if he thought about it at all.

Nor does it furnish aid in arriving at the true meaning of this language to be reminded that New Mexico is one of a very small minority of the states of the union denying the privilege of absentee voting. It would serve no useful purpose and would unduly extend the length of this opinion to conduct a roll-call of the states, cataloguing their pertinent constitutional provisions, and classifying them as to time and manner of acquiring the privilege. It is enough to say that some have the right by virtue of constitutional provisions or subsequent amendments; others (constituting a small minority of the states enjoying the right) by virtue of court decisions upholding absentee voting under constitutions similar to our own in this respect; and still others by virtue of statutes conferring the right in states having constitutional provisions similar to our own but in which the validity of the statutes has never been challenged on constitutional grounds. Indeed, New Mexico was in the latter class of states from the time L. 1927, c. 41, 1929 Comp., §§ 41-333 and 41-336, was enacted until the election contest involved in Thompson v. Scheier was initiated. Notice was taken of these considerations by the Supreme Court of Pennsylvania in Re Contested Election in Fifth Ward, 281 Pa. 131,126 A. 199, 200, 35 A.L.R. 815, where it is said:

"More than 30 of the states of the Union now have absentee voting laws of similar character, usually limited in the grant of privilege to those in military service, and in most casesauthorized by special constitutional provision." (Emphasis ours.)

It is strongly urged upon us that the express delegation of authority to the legislature in the second paragraph of Art. 7, § 1, to "regulate the manner, time and places of voting," gives it into the hands of the legislature to permit absentee voting whenever it so elects. This argument proceeds on the assumption that, voting either personally or as an absentee, relates only to the manner of voting and thus is carried outside the bounds of constitutional inhibitions. It is interesting to note that in each of the three respects in which the legislature is thus authorized to regulate, to-wit, the manner, the time and the place of voting, conditions will be found concerning the same which the legislature is powerless to avoid. For instance, Art. 20, § 6, fixes the time of holding general elections as the first Tuesday after the first Monday in each even numbered year. The legislature could not change that. The very Art. 7 with which we are concerned in § 1 thereof inescapably fixes the place of election as the precinct of the voter's residence. The legislature is powerless to change that. Section 5 of the same Art. 7 prescribes the manner of voting in one respect shall be by ballot. The legislature could not change that. Likewise, as we held in Thompson v. Scheier as a matter of true intent, the first paragraph of § 1 of Art. 7 contemplates that only those can vote at elections who are otherwise qualified electors and are personally present in the precinct of their residence offering to vote in person. The legislature cannot change that.

Aside from the fact that, except as prohibited, the legislature has plenary power to regulate the manner of voting (State v. Connelly, 39 N.M. 312, 46 P.2d 1097, 100 A.L.R. 878), the circumstance that confirmation of this legislative power appears in § 1 of Art. 7 after the framers in the first paragraph had finished describing the attributes of those who are entitled to vote, strongly indicates all this language means is that the legislature shall regulate the method and mechanics of voting by those who are otherwise qualified electors offering to vote in person. See In re Opinion of the Justices, 67 R.I. 465,25 A.2d 360, 140 A.L.R. 1096. And see, also, In Re Contested Election in Fifth Ward, supra, where the Pennsylvania Supreme Court said that the power of the legislature to make regulations as to the place, mode and manner of voting to insure the full and free exercise of the right to vote is subordinate to the right itself, and further said: "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 pretense of regulation, and thus would the natural order of things be subverted by making the principle subordinate to the accessory." We think upon the same reasoning that the legislature could not, by virtue of the clause involved, enlarge the right to vote beyond that delineated in the first paragraph of § 1 of Art. 7.

Caution should be exercised not to confuse the phrase "qualified elector" as popularly understood, with the phrase "qualified to vote" or "entitled to vote." For instance, § 2 of Art. 7 says that every citizen of the United States who is a legal resident of the state and is a qualified elector therein shall be qualified to hold any public office in the state except as otherwise provided in the constitution. Manifestly, "qualified elector" as there employed, is not dependent upon whether the elector has exercised the right of elective franchise or not. Looking at the matter realistically, however, one may have all of the other qualifications of an elector and yet if he does not appear in person in the precinct of his residence on election day and offer to vote, he has failed to fulfill one of the conditions necessary to entitle him to vote.

The argument based on the provision: "The legislature * * * shall regulate the manner, time and places of voting," would be equally potent to sanction legislative authorization of voting otherwise than by ballot, otherwise than on the Tuesday after the first Monday in November in each even numbered year and otherwise than in the precinct of the elector's residence.

It makes no difference whether the conditions which must converge to the point of permitting a vote to be cast be called a power, qualification, authority, capability, essential, competency or requisite, they, nor the convergence of all of them in order to allow the citizen to vote, may neither be enlarged, diminished or dispensed with under the pretext of legislative regulation.

In order to vote a person must possess certain qualifications and he must do certain things. Elections are determined by those who vote, not by those merely potentially qualified to vote. Davy v. McNeill, 31 N.M. 7, 240 P. 482; Fabro v. Town of Gallup,15 N.M. 108, 103 P. 271, 273. In White v. Commissioners of Multnomah County, 13 Or. 317, 10 P. 484, 486, 57 Am. Rep. 20, it was said:

"``Every definition of the qualification of voters,' said Mr. Drake, the author of the Law of Attachment, arguing in Blair v. Ridgely, 41 Mo. 63 [97 Am.Dec. 248], ``is but a statement of the terms on which men may vote; and in every instance such definitions refer to what a party has done as well as to what he is. They say to the voter: "If you have done certain things you can vote."' He who does not register is not qualified to vote, and hence is not a ``qualified elector,' — a phrase that is used five times in the constitution to signify those who are entitled to go to the polls on election day and legally vote. See Byrne v. State, 12 Wis. 519, 524; Sanford v. Prentice, 28 Wis. [358], 363. But under this act he who goes to the polls on election day, possessing every constitutional qualification, may find that the legislature has stepped in between him and the constitution. He finds his vote denied because he has not done something which the legislature has required him to do. He discovers that he is not a qualified elector, and yet he is told that his omission to do the act which had effect to disqualify him is not itself a disqualification; or if he have performed the act, that his performance does not constitute a qualification. This will not square with the logic of facts. The distinction between what is substantive and what is modal is confounded. He who has a right to something to-morrow can never be secure of his right before to-morrow comes."

We think Joint Resolution 12 of the 1919 Legislature, Laws 1919, p. 370, which provided for an amendment to the Constitution of New Mexico by adding another section to Art. VII, the same to be numbered Sec. 6, clearly and succinctly states the situation. It declared:

"Citizens of the state, absent from their places of legal residence, in the military or naval service of the United States or of this state, and being otherwise qualified electors, may be allowed to vote at any election for all state officers, presidential electors, Representatives in Congress, and upon Constitutional amendments, under such regulations and limitations as may be prescribed by law."

The legislature had the right appraisal of § 1 of Art. 7, namely, qualified electors who are absent from the precinct in which they might, if present, offer to vote shall not be "allowed to vote." They proposed to eliminate this disqualifying obstacle and indicated quite clearly a common understanding that "otherwise qualified electors" — "absent from their places of legal residence" were not allowed to vote. Thus the conditions precedent which must exist in order to "allow" one otherwise qualified, to vote, were not left to the legislature to change or alter under the guise of a power to regulate manner of voting.

The confirmation of the plenary power of the legislature to regulate the manner of voting means only that the legislature may regulate the manner of voting of those who are "allowed to vote." See In re Opinion of the Justices (R.I.) supra [67 R.I. 465,25 A.2d 363, 140 A.L.R. 1096], where the court said:

"The words, ``provide special regulations and manner of voting' in the last sentence of section 1 are not apt words to authorize the general assembly to confer upon the absent electors in the actual military service of the United States a greater franchise than that expressly conferred by the amendment upon all absent electors. On the contrary, upon first reading, such words seem to refer more naturally to the method or mechanics of exercising the limited franchise so conferred."

In Thompson v. Scheier we made mention of the fact that a limited absentee voting law applicable only in the county of the voter's residence had been enacted in 1869, L. 1869, c. 49, § 1 (section 1709, C.L. 1897), which was probably repealed by § 12 of c. 135 of New Mexico Session Laws of 1889 (section 1702, C.L. 1897). As a matter of fact, this same law in substance had been earlier enacted as § 18 of L. 1851-52, p. 196, C.L. 1897, § 1646. Incidentally, it furnishes another instance, in addition to those listed earlier in this opinion, in which the members of our territorial legislature employed the phrase "offers to vote" in the same sense in which the delegates to our Constitutional Convention used it when they transplanted it into this part of our constitution, as we held in Thompson v. Scheier. The 1851 law provided:

"Each voter shall vote in the county and precinct wherein he resides, but if any person should offer to vote in a precinct wherein he does not reside and have the necessary qualification, he may vote on taking an oath that he has not voted nor will not vote at any other precinct during the present election." (Emphasis ours.)

It is significant that while this statute and the later 1869 statute waived voting in the elector's home precinct, they did not waive a personal appearance in whatever other precinct within the county he might offer to vote. The authorization to vote outside the precinct of his residence in the same county was abrogated by the adoption of the constitution which requires voting in an elector's home precinct. The requirement for personal appearance of the voter in making his offer to vote was never abrogated by territorial laws and, as we have held, was continued by the constitution.

There is another consideration which lends support to the conclusion that we correctly interpreted the questioned constitutional provision in our earlier decisions. The constitution makers were not unfamiliar with the controversial question as to absentee voting. They were familiar with the common law understanding that an offer to vote contemplated a personal appearance of the voter in connection with such offer. They knew of the mandatory requirement for voting in that manner which had been in force in New Mexico for approximately sixty years. They were familiar with the meaning which attended the phrase "offers to vote" in several separate sections of the territorial laws and employed the phrase in the face of such knowledge in this provision of our constitution without in any way qualifying that meaning. These considerations impress us that if it had been the desire of the convention to authorize absentee voting, it would have been an easy and simple manner to choose language making clear the intention to do so.

It should be mentioned that three separate sessions of the legislature, to-wit, 1919, already noticed, 1937 and 1939, by submitting proposed constitutional amendments authorizing the legislature to enact absentee voting laws, interpreted the constitution as requiring the authorization to support such legislation. On the other hand, the 1927 and 1933 sessions, by enacting or amending an absentee voter's law, gave a contrary legislative interpretation. All proposals to amend have failed of adoption.

In his argument before us, both orally and in his briefs, the Attorney General has repeatedly reminded us that our decision in Thompson v. Scheier on the point here involved was unnecessary to a decision and therefore should not be given the customary weight as stare decisis. Similar argument is directed at the decisions in People v. Blodgett and Chase v. Miller, supra, seeking thus to weaken the force of those decisions and our own in the Thompson case so far as a decision of the question here presented is concerned. The argument is faulty and fails to impress us as sound. While it is true we might have decided Thompson v. Scheier without determining this point, the question was presented and argued as one of the grounds of unconstitutionality inhering in the absentee voter's law. The fact that a court of competent jurisdiction may declare a statute unconstitutional on two grounds, whereas it might have rested its decision on one ground only, does not make the decision on the second ground dictum. Duncan v. Brown, 18 N.M. 579, 139 P. 140; Baca v. Chavez, 32 N.M. 210,252 P. 987. And, under well settled principles, we should not depart from these two former decisions, each by a unanimous court, unless with the fullest conviction that the law has been settled wrongly. 21 C.J.S., "Courts", p. 324, § 193, State v. Cox, 43 Ariz. 174, 30 P.2d 825. We entertain no such conviction but, on the contrary, after a painstaking re-examination of the question and the fullest consideration of the arguments presented by the Attorney General, we are reinforced in the belief that the question was correctly decided. This is so, notwithstanding any belief on the part of our dissenting brethren that but for the two former decisions, there would be unanimity of opinion amongst us on the correctness of the view supported by them. And, since opinions are being freely expressed, may we not properly give it as ours that any reconsideration of this question in normal times, with minds and emotions freed from the exigent influence of a global war and the hardships engendered by it, as was true when the Thompson and Baca cases were decided in 1936, would have left none in doubt that those cases would be adhered to by a unanimous court.

In closing this opinion, it may be proper to say that we regret the conditions which will deny to many thousands of our patriotic service men and women, serving at home and abroad but absent from their home precincts on the day of election, the privilege of exercising their voting franchise. Those conditions, however, are beyond our control as a court. They inhere in our fundamental law and can be changed only as therein provided. The difficulty of bringing about a change likewise is beyond our control.

The language of the Supreme Court of Rhode Island in Re Opinion of the Justices, supra (1942), in dealing with a somewhat similar question, reflects our own feelings as we have deliberated the decision in this case. There the court said:

"Under a liberal construction in favor of those citizens performing or called to perform the highest duty of a citizen in a free government, that of military service in its defense in time of war, it is arguable that the people intended that the legislature should be authorized to make special provisions in favor of such citizens, not only as to the exercise of the franchise, but also as to the extension of it. Such an argument in times like the present appeals strongly to the heart, and were we free to follow only our feelings in the matter, we would have no difficulty; but in this, as in all other questions pertaining to the scope and limitations of the constitution, we are bound by the well-established rules of construction of constitutions."

One of the principles of our democracy for which our armed forces fight is the separation of powers. We, too, champion the principle that amendments to constitutions must be left to the people and not supplied by the courts.

It follows from what has been said that both causes of action set up in the complaint must fail and that the judgment of the district court is correct and should be affirmed.

It is so ordered.

SADLER, C.J., and BICKLEY, J., concur.