Commonwealth ex rel. McCormick v. Reeder , 171 Pa. 505 ( 1895 )

Opinion bv

Mr. Justice Dean,

The act of June 24, 1895, P. L. 212, provided for the creation of the Superior Court, a court intermediate between the Supreme Court and the courts of common pleas,'to be composed of seven judges, to be appointed by the governor, to hold their offices under this appointment until the first Monday of January following: In the meantime, at the general election in November, their successors were to be elected to hold office for the term of ten years from said first Monday of January.

In the first section of the act it is provided that: “ No elector may vote, either then, or at any subsequent election, for more than six candidates upon one ballot for the said office. ” The commonwealth alleging this provision of the act to be unconstitutional and void, in that it restricted the right of the voter to cast his ballot for six judges, when seven were to be elected, requested the secretary of the commonwealth, the defendant, to prepare the official ballot under act of June 10, 1893, as indicating seven candidates for the office instead of six as provided in the act. This the secretary refused to do, being of opinion, it was his duty to follow the statute; the plaintiff then applied to the court below for a mandamus to the secretary; on hearing of the application and after argumerit by formal decree the mandamus was awarded; tbe decree was purely formal, however; Judge Simonton being of opinion this provision of the act is unconstitutional, favored awarding the writ; Judge McPherson was of opinion the provision was constitutional, but for- the purpose of speeding final hearing and determination of the question, pro forma, concurred in the decree. If he had suggested a decree in accordance with his opinion the application would have failed, because of a divided court, but having concurred in the decree suggested by Judge Simonton, the secretary brings this appeal from it, and we have the question before us for final determination.

There are seven candidates to be voted for; the legislature has declared no voter shall vote for more than six; in so declaring has it deprived the voter of a constitutional right? If so, then this provision of the act is void, otherwise not.

A constitutional convention and the legislature are equally representatives of the will of the people. A written constitution marks only the degree of restraint which, to promote stable government, the people put upon themselves; they resolve in this instrument in substance: We will not do certain things and we will do certain others; and generally in the same instrument any change in the course of government thus marked out is rendered difficult by the formalities and lapse of time which must attend an amendment of it; therefore, changes are infrequent and a reasonable degree of stability is attained. But whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. This latter body represents their will just as completely as a constitutional convention in all matters left open by the written constitution. Certain grants of power, very specifically set forth, were made by the states to the United States, and these cannot be revoked or disregarded by state legislation ; then come the specific restraints imposed by our own constitution upon our own legislature; these must be respected; but in that wide domain not included in either of these boundaries the right of the people through the legislature to enact such laws as they choose, is absolute. Of the use the people may make of this unrestrained power, it is not the business of the courts to inquire. We peruse the expressions of their will in the statute; then examine the constitution and ascertain if this instrument says, “ Thou shalt not,” and if we find no inhibition, then the statute is the law simply because it is the will of the people and not because it is wise or unwise. As is said by Black, C. J., in Sharpless v. The Mayor of Philadelphia, 21 Pa. 147, “ The great powers given to the legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power to answer its legitimate ends and at the same time incapable of mischief.” So here, even if we concurred with the appellee, which we do not, that approval of the exercise of such a power by the legislature as manifested in this act will naturally lead to abuse of it, that should have no influence in determining the constitutional question ; to permit it to control our judgment would be, in effect, to say, that, as the people have by the adoption of this constitution unwisely neglected to restrain themselves in their lawmaking power, we will wisely restrain them now. We have no such opinion ; but if we had, we have no such power, and therefore turn to the constitution to ascertain, from that alone, whether the statutory provision is forbidden.

Section 1, art. 8, declares: “ Every male citizen, twenty-one years of age .... shall be entitled to vote at all elections; ” then follow the other qualifications, such as residence and payment of tax. The provision on this same subject in the constitution of 1838, sec. 1, art. 3, reads thus: “In elections by the citizens every white freeman of the age of twenty-one years .... shall enjoy the right of an elector.” Except that the word “ white ”'is injected, this is almost verbatim the provision on the same subject in the constitution of 1790.

The qualification of the voter in each constitution is specified; his age, sex, residence and payment of taxes. Although a distinction between the words used in the constitution of 1874 and those used in the two older constitutions is sought to be drawn, we can see none between “ be entitled to vote- at all elections,” and “ shall enjoy the rights of an elector.” Both mean the same thing; he shall not be entitled to vote if he possesses not the enumerated qualifications and every of them ; if he do possess them all then he is an elector, and entitled to vote as the law may prescribe. Being an elector, and therefore entitled to vote at all elections, the constitution of 1874, as well as those which preceded, goes a step farther, and in sec. 5, art. 1, declares: “ All elections shall be free and equal."’ That is, the voter shall not be physically restrained in the exercise of his right by either civil or military authority; nor, shall there be inequality; every voter shall have the same right as every other voter. Is there any other provision in the constitution touching the method of the exercise of his right by the qualified voter iu voting for the judges of the Superior Court?

Section 1 of art. 5 provides that: “ The judicial power of this commonwealth shall be vested in a Supreme Court, in courts of common pleas, courts of oyer and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates courts, and in such other courts as the general assembly may from time to time establish.”

Under the authority of this last specification, “ such other courts as the general assembly may from time to time establish,” the Superior Court was created. Nothing is said in the article as to how judges of such courts when established shall be elected. Section 15 of the same article clearly applies to the election of district judges of the common pleas, for they are to be elected by the qualified electors of the respective districts over which they are to preside, while the jurisdiction of the Superior Court judges is limited by no district boundaries. The manner of electing Supreme Court judges is also prescribed in the constitution; but being silent in the judiciary article as to the method of electing the members of the Superior Court, we turn to sec. 1, art. 12, which declares: “All officers whose selection is not provided for in this constitution shall be elected or appointed, as may be directed by law.” And so, in pursuance of the authority to create other courts in sec. 1 of art. 5, the court is established, and by the authority of sec. 1, art. 12, the method of election is prescribed.

The constitutionality of the court is not denied by appellee, nor is the right of the legislature to provide for the election of its judges deuied; the constitutionality of the method of election alone is in question. As the language of the constitution of 1838, prescribing the qualifications of voters, possesses the same significance as that of 1874, the words “shall enjoy the right of an elector,” and “ shall be entitled to vote at all elections,” meaning the same thing, do they as urged by appellee mean more than they express? Can they, by any reasonable interpretation, include an absolute right to vote for every candidate of a group of candidates for the same office? Without regard to what the legislature might have done to fill the offices created by the establishment of the Superior Court, whether they might or might not have made the office appointive, all these questions are now unimportant and we pass no opinion upon them ; the court is established; the office is made elective to be filled by the candidates elected at the general election. We 'therefore must treat the case as the legislature has treated it. The question now is as to the interpretation to be put upon the language specifying the qualification of the voter who has by law a right to vote at the election for candidates for this office.

No sound reason has been urged in the argument why we should enlarge the scope of the words “ shall be entitled to vote at all elections ” by practically adding “ also for every candidate of a group of candidates for the same office.” The constitution does not so say and has never been interpreted to so' mean. Within one year after the adoption of the constitution of 1838, the act of July 2, 1839, became a law. It provided: “Section 4. Each of such qualified citizens shall vote for one person as judge, and also for one person as inspector of elections, and the person having the greatest number of votes for judge shall be publicly declared to be elected judge, and the two persons having the greatest number of votes for inspector, shall in like manner be declared to be elected inspectors of election.”

Here was a restriction immediately after the adoption of the constitution; two inspectors are to be elected, yet the qualified voter, who “ shall enjoy the right of an elector ” is limited to a vote for one. This is more than a mere legislative construction ; it is a cotemporaneous interpretation of language by those who lived when the constitution was framed, possibly by some of those who took part in the convention, and certainly by those who had voted at the election at which it was adopted. This interpretation was never questioned. A period of twenty-eight years elapsed when the jury commissioner act of 1867 was passed, providing for the election every three years of two jury commissioners, and limiting the qualified voter to a right to vote for but one. For seven years every verdict in civil and criminal cases in the commonwealth rested on the twelve jurors whose names were put in tbe wheel by officers elected under this act. Although the legality of tbe panel and array of jurors has been disputed in many cases, the constitutionality of the election of those who selected them has never been questioned. Then, in 1872, was passed the act providing for the election of delegates to the constitutional convention which framed the constitution of 1874. Again, the plan of limited voting was provided for and its legality not disputed. We concede that, no matter how irregular may have been the election of the delegates to that convention, the adoption of its work by the direct vote of the people cured all such irregularities and made the constitution the fundamental law of the commonwealth. We cite the act only as evidencing the legislative interpretation of the constitution of 1838.

The convention which framed the constitution of 1874 was composed of eminent men, some of them the ablest lawyers in the state ; the construction put upon the constitution of 1838 was well known to them; the method of their own election they knew; can it be presumed for a moment they would have accepted an election to a high office if they had thought it was brought about by unlawful, because unconstitutional, methods ? It thus clearly appears, that the interpretation put upon the language of the constitution by those who lived at the time it was framed and adopted, was the same as that put upon like language in that of 1874 by the legislature of 1895 ; that flu: interpretation put upon the constitution of 1838 was acquiesced in by the bar, the courts and the legislature for a period of thirty-five years until the adoption of the constitution of 1874. That in two other instances, offices of the highest importance, jury commissioners and delegates to a constitutional convention were by legislative enactment filled on the limited voting plan. In view of this long continued interpretation of our own constitution, we do not think it necessary to discuss the authorities cited from other states. In fact in the case most relied on by the appellee, State against Constantine, 42 Ohio, 437, in which the court arrives at a conclusion different from ours, it is said: “ The right of each elector to vote for a candidate for each office to be filled at an election had never been doubted; ” in our state the right of the legislature to limit the vote to a less number than all the officers to be elected has never been doubted; as the historical interpretation has been wholly different the conclusions must necessarily be at variance. Hays v. Commonwealth, 82 Pa. 518, turned on another question than is raised here ; viz : whether by application of the cumulative voting plan, a stockholder’s election in a railroad corporation chartered under act of 1868 could be controlled. This court held that even the constitution could not take from the stockholder his vested right under the charter to have one vote cast for each officer to be elected.

But, it is argued from the provisions of the constitution establishing limited voting as to certain offices, the maxim expressio unius exclusio est alterius must move the court to the construction contended for by appellee. The application of this maxim depends wholly on the subject of contention'; the expression of one thing often necessarily is, or tends to, the exclusion of others not expressed; but the induction is not warranted in all cases, and if indiscriminately applied would frequently lead to most erroneous conclusions. Take the cáse before us: the constitution establishes limited voting in the election of Supreme Court judges, county commissioners, Philadelphia magistrates, and inspectors of election; therefore, it is argued, the implication is that the plan is excluded in the election of all other officers. But the limited voting plan was.recognized and adopted in the constitution because it was deemed wise that as to offices non partisan in character, or which at least should be, the minority party ought to have representation, and this could only be attained by limited voting. Does the expression of this thing necessarily exclude other things not expressed ? As the same reasons for the plan exist as to like offices thereafter created, is it not a necessary deduction that a like plan to that expressed should be followed? Does not the whole spirit of the constitution plainly so imply, while there is not a word indicating that such plan as to other or new courts is forbidden. In the cases specified the constitution is mandatory; it saj-s to the legislature in these, enumerating them, thou shalt prescribe the limited voting plan ; in the cases not enumerated but of the same kind it is discretionary.

For the. reasons herein stated, as well as for those assigned in the opinion of Judge McPherson, the decree of the court below is reversed and the petition of the attorney general for a mandamus is dismissed at the costs of appellee.