Patterson v. Barlow

The opinion of the court was delivered, by

Agnew, J.

— We regret that the necessity for an immediate decision in this case has allowed so short a time for the preparation of our opinion; and that the public character of the questions demands a treatment too full to be compatible with brevity.

The plaintiffs are private citizens, electors of the Commonwealth, tax-payers, and holders of real estate in the city of Philadelphia. By their bill they ask us to declare illegal and void an Act of the General Assembly passed the 17th of April 1869, supplementary to the election laws of the Commonwealth; and to enjoin the councils, aldermen, commissioners, controller, and treasurer of the city from carrying its provisions into effect. The defendants deny the standing of the plaintiffs as proper parties, and the jurisdiction of the court over the subject. In view of the danger to the peace and quiet of the people, if the constitutionality of this law should be left in uncertainty, we shall pass by the questions of standing and jurisdiction, in order to reach the all-important one upon the validity of the law. In passing them by, we do not mean it to be inferred that we have not grave doubts of the right of the plaintiffs to represent the public, and of our own jurisdiction to enjoin against one of the political systems of the state in its entire scope, because of the invalidity of some of its provisions. We doubt the right of the plaintiffs to call for an injunction beyond that portion of the law, which they, as private citizens, can show to be injurious to their own rights; and it is more than doubtful how far as private citizens they can impugn the law in its public aspects, and ask us to restrain its execution on public grounds. This is the only system to regulate elections intended by the legislature to be left in force; all laws supplied by it and all inconsistent with it being expressly repealed. If as a court of equity we can lay our hands on the whole system because of the illegality of some of its parts, we can, on the eve of any election, arrest the entire political machinery of the Commonwealth, which is set in motion by a general election. This is a stupendous power; and to see its true aspect we have only to suppose the Act of 1839 and its supplements to be still in force, and that this bill is filed to enjoin against it on the ground of the alleged illegality of some of its provisions. As a question of power, we would have the same right to enjoin against it, and thus to stop the wheels of government. See The State of Mississippi v. Andrew Johnson, 4 Wallace 475.

We come'now to the important question whether the Act of 17th April last, called the Registry Law, is constitutional. It is admitted that the Constitution cannot execute itself, and that the power to regulate elections is a legislative one, which has always been exercised by the General Assembly since the foundation of the government. The Constitution appoints the time of the general election, prescribes the qualifications of voters, and enjoins the ballot; and for all the rest the law must provide. The precincts and places, the boards of election, the lists of the electors, whether called a list of taxables or a register of voters; and the evidence of persons and qualifications must all be prescribed by law. This undoubted legislative power is left by the Constitution to a discretion unfettered by rule or proviso, save the single injunction “ that elections shall be free and equal.” But to whom are the elections free ? They are free only to the qualified electors of the Commonwealth. Clearly they are not free to the unqualified. There must be a means of distinguishing the qualified from the unqualified, and this can be done only by a tribunal to decide, and by evidence upon which a decision can be made. The Constitution does not provide these, and therefore the legislature must establish the tribunal, and the means of ascertaining who are and who are not the qualified electors; and must designate the evidence which shall identify and prove to this tribunal the persons and the qualifications of the electors. How shall elections be made equal? Clearly by laws which shall arrange all the qualified electors into suitable districts, and make their votes equally potent in the election; so that some shall not have more votes than others, and that all shall have an equal share in filling the offices of the Commonwealth. But how shall this freedom and equality be secured? The Constitution has given no rule and furnished no guide. It has not said that the regulations to effect this shall be uniform. It has simply enjoined the duty and left the means of accomplishment to the legislature. The discretion, therefore, belongs to the General Assembly, is a sound one, and cannot be reviewed by any other department of the government, except in a case of plain, palpable and clear abuse of the power which actually infringes the rights of the electors. It is not possible, nor does the Constitution require, that this freedom and equality of election shall be a perfect one. No human law, affected as it must be by obstacles and a difference of circumstances, can devise a system of perfect equality— it can only approximate it, and mere errors in the execution of the power cannot make the execution unconstitutional. Individuals may experience difficulties, and some may even lose their suffrages by the imperfection of the system; but this is no ground to pronounce a law unconstitutional, unless it is a clear and palr pable abuse of the power in its exercise. Then that election is free and equal where all of the qualified electors of the precinct are carefully distinguished from the unqualified, and are protected in the right to deposit their ballots in safety, and unprejudiced by fraud. That election is not free and equal where the true electors are not separated from the false ; where the ballot is not deposited in safety, or where it is supplanted by fraud. It is, therefore, the duty of the legislature to secure freedom and equality by such regulations as will exclude the unqualified, and allow the qualified only to vote. A free and equal election is the end, regulations to attain it are the means. If the end be attained, it is evident no question of constitutional law can arise on the uniformity or diversity of the regulations by which the end is reached. Of necessity, laws passed to promote a given object, must be controlled or modified by the circumstances surrounding the object, and must be framed to meet the exigencies standing in the way of the end to be reached. If uniformity of regulation be unsuited to different localities, the end must be attained by diversity. If in one part of the state a system secures to electors a free and equal election, but fails to secure it in another part because of the difference of circumstances, what principle of constitutional law makes it unlawful to enact other provisions to counteract the circumstances, and secure the true purpose of the Constitution ? Good sense, good order and sound morality require this diversity of regulation when it secures the end ; and it is a great fallacy to substitute uniformity of regulation for a free and equal election.

This is not a new question. A registry law for the city and county of Philadelphia was passed on the 16th day of June 1836. The list of voters corrected and certified on the first Tuesday of October, one week before the election, was made “ the only and conclusive evidence of the qualifications of the electors thereof except in the eases of naturalization hereinbefore mentioned.”

No attempt was ever made to question the constitutionality of the Registry Law of 1836, though enacted under the provision of the Constitution of 1790 now in force. It was in force when the Convention to amend the Constitution sat in 1837-8, and entered largely into its discussions. The attention of the convention was thoroughly aroused to it. ■ In committee of the whole on the report of the committee on the 9th article, Mr. Sterigere, of Montgomery, moved to amend the 5th section by adding a provision for uniformity in the regulations for elections. It was voted down, and when the report came up on second reading, Mr. Sterigere again offered it. The amendment will be found on the 249th page of the 11th vol. of the Debates of the Convention, in these words: “ The 5th section being under consideration, which reads in words following, viz., Sect. 5. That elections shall he free and equal, Mr. Sterigere, of Montgomery, moved to amend the said section by adding to the end thereof the words as follow, viz.: The election laws shall he uniform throughout the state, and no greater or other restrictions shall he imposed on the electors in any city, county or district than are imposed on the electors of every other city, county or district.”

Mr. Sterigere stated that this amendment was offered in committee of the whole, and was rejected by a small majority. John M. Scott, of the city of Philadelphia, said this amendment was fully discussed in the committee of the whole. It should be understood, he said, that its effect would he to destroy the Registry Law in the city and county of Philadelphia. Mr. Charles Brown, of the county of Philadelphia, said he knew no reason why the law should be different in one part of the state from what it is in another. The previous question was then called, cutting off the amendment, a,nd was sustained by a vote of 69 to 42, a number of the political friends of Mr. Sterigere and Mr. Brown voting in the majority. Thus the 5th section of the 9th article was left as it stood in the Constitution of 1790, to wit: “ That elections shall be free and equal.” This was no party vote, the relative strength of parties in the Convention being 67 and 66, and should put an end to all argument on the constitutionality of a registry law.

The question of uniformity of regulation was conclusively settled by this vote. The very purpose of the amendment of Mr. Sterigere was to destroy the Registry Law then existing under the identical provision in the Constitution of 1790, that elections shall be free and equal. This purpose was brought directly to view by Mr. Scott, and the Convention by this vote decided against uniformity of regulation and against imposing restrictions upon the legislative power.

Last year the question upon the power of the legislature to pass a registry law was brought before this court in the case of Page et al. v. Allen et al., 8 P. F. Smith 338, and a majority of the court (composed of Justices Strong, Read and myself), held that the power existed; but Justice Strong thought the Act of 1868 unconstitutional in a single but essential particular, by requiring proof of a residence in the district longer than the constitutional period of ten days. That law was therefore held to be unconstitutional by a majority, Justice Read and I dissenting. The decision, therefore, has no bearing on the general question.

That a registry law to identify and distinguish the true electors is constitutional we cannot doubt, and that uniform regulations are not enjoined by the Constitution is beyond all dispute.

But is there a necessity for local legislation requiring provisions adapted to the city of Philadelphia, not suitable to other parts of the state ? If not, why is a city charter granted with all its large powers^ of local government, its special provisions for police and for conduct ? Where population greatly abounds vice and virtue have their greatest extremes. A simple rural population needs no night police, and no lock-up. Rogues and strumpets do not nightly traverse the deserted highways of the farmer. Low inns, restaurants, sailors’ boarding-houses, and houses of ill fame do not abound in rural precincts, ready to pour out on election day their pestilent hordes of imported bullies and vagabonds, and to cast them multiplied upon the polls as voters. In large cities such things exist, and its proper population therefore needs greater protection, and local legislation must come to their relief. The freedom and equality of the ballot-box must be protected from the local causes which mar and destroy a free and equal election. What crime have the freemen of Philadelphia committed, that their voice at the ballot-box may be stifled by the fraud or force which springs out of their local circumstances, and yet the legislature be powerless to relieve them ? In the language of another, that would be “ to place the vicious vagrant, the wandering Arabs, the Tartar hordes of our large cities, on a level with the virtuous and good man — on a level with the industrious, the poor and the rich.” Is that a wise and just interpretation of the Constitution which opens the polls of a large city to such imported hirelings and vagabonds without a home, by adhering to a uniformity of regulation unsuited to the city on the one hand, or to the country on the other ? Is the Constitution of Pennsylvania so deformed and sterile that her laws cannot protect the ballot-box of a city from falsehood and fraud because they admit of but one unbroken system for the state ? Such an interpretation of the Constitution is wanting in merit, and can only operate as an incentive to fraud. How then can the freedom and equality of election be secured in a great city if from the force of local circumstances the places of the real electors are usurped, if the ballot-box can be stuffed with impunity, or if suffrage can be exercised only at the risk of violence or life ?

Thus the ground on which this case was placed at Nisi Prius is swept away, the postulate of the learned judge being that uniformity of regulation throughout the state is a demand of the Constitution, as the equivalent of equality of election. But when it is shown that the Constitution nowhere demands uniform regulations, and, on the contrary, that the very equality of elections demands a difference in regulation to overcome the obstacles to equality and fairness existing in the city, his fundamental position is overturned, and with it the entire argument built upon it. Then of what service is it to display the differences in this law, between the regulations made for the city and those for the state ? Let them he ten or ten times ten, it is not their difference which proves their unconstitutionality — difference of regulation is not want of equality in the election. He who would prove them to be unlawful, must show wherein they subvert the rights of the electors themselves. If the prevalence of fraud, corruption, or force in the city makes the lavr more rigid and exacting in order to determine the rights of the lawful electors, it may be a hardship; but it is not caused by the law, but by the crimes which make the law necessary for their protection.

When the legislature possesses an undoubted authority to regulate, such as in this case, its discretion is not the subject of review. This is expressed by Black, C. J., in Sharpless v. Philadelphia, 9 Harris 147, in these words: “ There is another rule which must govern in cases like this; namely, that we can declare an Act of Assembly void only when it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds. This principle is asserted by judges of every grade, both in the Federal and in the state courts; and by some of them it is expressed with much solemnity of language.” He refers then to 6 Cranch 87; 4 Dall. 14; 18 S. & R. 178; 12 Id. 389; 4 Binn. 123. See also the opinion of Sharswood, J., in Commonwealth v. Green, 8 P. F. Smith 226.

We come now to the question, What provisions of this law for the regulation of the city elections, if any, are subversive of the rights of city electors ? The number of these objected to is few, after having disposed of the difference between city and state regulations. Much stress has been laid on the right of the people to elect the officers of the elections; and much said upon popular rights which might well be addressed to the legislature in making or reforming the law. But, unfortunately for the argument, the people have by their Constitution disposed of all such appeals when addressed to us. What clause of the Constitution forbids the officers of the election, the canvassers, or even the assessors, to be appointed by a board constituted by law, whether it he a board of aldermen or a board of commissioners ? Let the Constitution itself answer, Art. 6 and 8: “ All officers whose election or appointment is not provided for in this Constitution shall be elected or appointed as shall be directed by law.” Here there is a law made under the direct sanction of the people themselves, expressly given in the Constitution. But it is said the law is unconstitutional because the hoard of appointment in this case (the aldermen) have a majority in it of persons belonging to a particular political party, and the argument omitted to say a majority which is the result of popular elections. This ground of unconstitutionality of law because a board created by it is composed of individuals of different political opinions, with a majority in a certain way the result of popular elections, seems, to belong to an age fruitful in discovery. Iiow is it possible that any board composed of men can be organized without a majority in political opinion in one way or another ? To the party in the minority such a board must always be unconstitutional if such arguments were to prevail.

But clearly it is not unconstitutional and not unfair to designate a board of gentlemen chosen by the people to administer the laws among them. If these men be unfit agents it is not the fault of the legislature, but of a people who will elect such men to administer justice to themselves. The law binds the board of aldermen to appoint the officers of the election, so that the political party having a majority in the election division shall have a majority of the board. It requires the canvassers to be appointed so that each party will be represented in the several boards of canvassers, adding a supervising power in the courts to correct errors. What fair mind can pronounce this an abuse of legislative power, so gross, so palpable and so plain as to become an unconstitutional act? Said Chief Justice Marshall: “All power may be abused, and if the fear of its abuse is to constitute an argument against its existence, it might be urged against the existence of that which is universally acknowledged, and which is indispensable to general safety:” Brown v. Maryland, 12 Wheat. 441. The argument that the aldermen being judicial officers cannot be compelled to act, is of no weight, and was so regarded by the whole court in Page et al. v. Allen et al., decided last year. The position would overturn our own acts as judges in the appointment of prison, penitentiary and building inspectors, commissioners to take testimony and other officers. The practice is sanctioned by a century of use. The lower courts fill all vacancies in county and township offices, such as commissioners, auditors, surveyors, district attorneys, constables, supervisors and overseers of the poor. The associate judges constituted a part of the military boards under the bounty and provision laws, and the boards for the revision of taxes; and the judges of the judicial districts appointed the revenue commissioners. Besides the aldermen have not refused, and it is not likely they will refuse, and what authority have these plaintiffs to gainsay their right to act, or to put in a refusal on their behalf? The truth is the whole weight of this objection consists in the fact that the majority of the board, representing the popular majority, hold opposite opinions to the plaintiffs, and when a new deal of the popular cards turns up a different majority, I suppose gentlemen of the opposite party will use the same argument.

The next objection urged, with equal, and perhaps greater zeal, is that there is no provision for assessing persons in the city after the 20th of September. The purpose of this regulation is obvious — it is to cut off the unqualified persons who are imported into the districts to displace the votes of the true electors; by taking a period for the extra assessment sufficiently distant from' the day of election, to render it inconvenient and difficult for these hirelings to obtain a false qualification. But what clause of the Constitution requires the assessment of taxes to be extended to any period ? It is a new discovery that the system of taxation must be subordinated to that of election. Neither the Constitution of 1790 nor that of 1838 prescribes any time for the exercise of the powers of taxation, though both use the payment of tax within two years as the means of distinguishing the true elector and as evidence of his residence and membership in the community. It is a great error in constitutional law to mistake a restriction for an injunction. When the Constitution provides that the elector shall have paid within two years a state or county tax, which shall have been assessed at least ten days before the election, its purpose was to restrain the assessment so that voters might not be fraudulently made at the very polls; but it did not require the tax power to be altered so that assessments should be compulsory down to the tenth day before the election. There is no express injunction, and it is not even a fair implication. The rights of the true electors were well protected when they were allowed two years preceding for the payment of a tax to secure their qualification, a period including certainly two, and it might be three annual assessments. To this the law adds an extra assessment at any time before the 20th of September. The time of the assessment of taxes is part of a different system, that of taxation; and the Constitution has nowhere said it is to be subordinated to the system of election. This time-belongs to the sound discretion of the legislature, and should be regulated with a regard to what they believe the best interests of the citizens. If the Assembly believe that the best means to prevent frauds in the city elections is to increase the period for the last assessment, it may be done, the only constitutional provision being the restriction that the time shall not be less than ten days before the election.

The alleged double taxation scarcely deserves notice. The system of annual taxation has marked the whole history-of the government. He whose name is on the annual list to whom a tax is assessed, is clearly not. to be listed a second time for taxation. He is to be listed for the election. The first list of electors is to be made before the 1st of June, and being made by the same officers is evidently intended to be made in connection with the original assessment. If an elector has been already taxed, his tax will be transferred to the list of electors, if not, the tax will then be assessed in order to perfect his qualification as a voter. When, the law is so easily harmonized it is a forced construction which exacts a second tax from one whose name is on the original list. The extra assessments on the subsequent lists are evidently required to perfect the elector’s qualifications.

It is argued that the provision of this act which requires the assessors to omit from their lists all boarders at hotels, taverns, sailors’ boarding-houses an<J restaurants, and all persons not qualified electors having a fixed residence in the division, is unconstitutional. It is said that a large class of electors is thus excluded from the list. This is a palpable error. The law forbids the assessors to take down the names of such persons, to prevent the frauds known to result from taking down lists of persons given in as boarders, when no such persons are residing at the hotel or boarding-house. But it nowhere forbids these omitted persons from being placed on the registry at the proper time, and on proper evidence. On the contrary, a mode is provided to enable every lawful elector to be registered, by application to the assessors or to the canvassers. Clearly the feature complained of is a useful provision to protect the rights of the true electors of Philadelphia, and to reach the unqualified persons found at such convenient places just upon the eve of an election, when their votes are needed by unscrupulous men. Its purpose is to exclude this fraudulent. element, by compelling all persons not known householders and fixed inhabitants to come personally before the proper board and make proof of their right. True, the omission demands of single men, clerks, journeymen and transient boarders, a greater vigilance to secure their suffrage. But the demand is not imposed by the law, but by the necessity which required it, in order to protect them and all other honest electors from being supplanted by fraudulent voters.

What clause of the Constitution forbids this power to be exercised according to the exigency of the circumstances ? Where the population of a locality is constantly changing, and men are often unknown to their next-door neighbors; where a large number is floating upon the rivers and the sea, going and returning and incapable of identification; where low inns, restaurants and boarding-houses constantly afford the means of fraudulent additions to the lists -of voters, what rule of sound reason or of constitutional law forbids the legislature from providing a means to distinguish the honest people of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights ? I cannot understand the reasoning which would deny to the legislature this essential power to define the evidence which is necessary to distinguish the false from the true. The logic which disputes the power to prohibit masqueraders in elections, on the ground that it affeets their freedom or equality, must also deny the power to repress the social disorders of a city, because the same Bill of Rights declares that all men are free and equal and independent and have the right of pursuing their happiness. The power to legislate on the subject of elections, to provide the boards of officers, and to determine their duties, carries with it the power to prescribe the evidence of the identity and the qualifications of the voters. The error is in assuming that the true electors are excluded, because they may omit to avail themselves of the means of proving their identity and their qualifications. It might as well be argued that the old law was unconstitutional because it required a naturalized citizen to produce his certificate of the fact, and expressly forbade his vote if he did not. What injustice is done to the real electors, by making up the lists so that all persons without fixed residences shall be required to appear in person and make proof of their residence, and thus to furnish a true record of the qualified electors within the district ?

In connection with this subject another feature is mentioned as a hardship — requiring the proof of residence by two witnesses, who must be householders and electors. But hardship is not the test of the constitutionality of a law. This case is no harder than the law which requires a will to be proven by two witnesses, before a man • can exercise his more precious right of disposing of his property among his children, when he comes to die. Both laws have the same purpose — protection. One would protect electors against fraudulent voters; the other would protect the dying man against a fraudulent will.

Another complaint is made of unconstitutionality, on the ground that the canvassers are required to strike off the list the names of all unqualified persons, if upon due inquiry and investigation they shall find them to be unqualified; but, in the absence of the person, they can only do this on the testimony of at least two reputable citizens, who are private householders. The argument is, that the law is unconstitutional, because the canvassers might abuse their powers. They are not permitted to strike off any qualified voter, and if they do, he has his remedy at law to compel them to restore his name. The canvassers are a legal tribunal established to decide on evidence of qualification, are sworn officers, and are required to proceed in a due and proper mode, and decide on sufficient evidence. ' But a law can be pronounced unconstitutional only when the law itself subverts the true electors’ rights, and not because the tribunal acting under it may make mistakes, or even abuse its functions. All tribunals of every kind could be set aside upon such an argument. The language of Chief Justice Marshall may be again referred to on this point.

Another ground much urged is, that the proper time for the proof of the qualifications of electors is the day of the election, for then only, it is said, the period of residence is complete; and from the nature of the facts this cannot be shown before. Grant it; but this position is taken in mistake of the very law before us. By this law, it is on that day — the election-day — the election board sits to receive the vote and the proof — then the elector appears before them and proves his franchise; then the evidence is produced, and the decision made upon it. But what clause in the Constitution forbids the means to be provided beforehand which furnishes evidence of the fact ? What clause forbids the making up of a record ten days before, that shows that the person offering his vote to the board was an actual resident of the precinct ten days before; and was ¿hen set down as entitled to claim his privilege on the day of election ? Why is such a record not good evidence that his residence actually began in the district, or preexisted there ten days before the election ? It certainly does not diminish the true elector’s right; but on the contrary tends to secure it. It is better evidence than the testimony of some irresponsible and base perjurer, brought to prove a false residence at some low boarding-place. The record has the merit of truthfulness, and it relieves the true and honest elector of those unfounded and malicious objections to his vote made by partisans of either side. Here is the legal proof that his residence in the district began in the due constitutional time. What better proof can there well be of a residence complete on the day of election, than the personal appearance of the elector on that day claiming his vote, with his ballot in one hand and the register in the other ? It is good evidence, for the legal presumption arising from such proof is violent.

But it is unnecessary to discuss this subject at greater length. The want of time to condense the argument has made this opinion already too long. Enough has been said to show that free and equal elections are the true end to be secured, and that the system of laws regulating the elections is only the means of securing the end; that this system of regulation is the subject of legislation over which the legislature exercises a sound discretion; that no clause in the Constitution requires uniformity of regulation, or' prohibits legislation according to the obstacles which different localities present to prevent' a free and equal election; and that it is a mistake to substitute uniformity of regulation, for the free and equal election which it is the object of regulation to secure. We have also shown that none of the features of this law subvert the rights of the true electors of this city, and that is the only test of the constitutionality of any provision contained in the law.

It is true there is a kind of liberty this registry law will destroy. It is that licentiousness, that adulterous freedom; which surrenders the polls to hirelings and vagabonds, outcasts from home and honest industry; men without citizenship or a stake in the government ; men who will commit perjury, violence and murder itself. To prevent this is the purpose of this law; and it should have the aid of fair men of all parties to give it a fair trial, and secure its true end. It may have defects — doubtless it has — and what system devised by the wit of man has not; but its defects, if any, should be remedied as they are disclosed by experience. ■ The law is not unconstitutional. It is a part of the political system of the state, on which its offices, and its very continuance depends; and we, as a court, have no right to put our hands upon the whole system, on grounds of mere hardship, or for defects of regulation, which are not clear and palpable violations of the letter or very spirit of the Constitution.

The decree of the Court of Nisi Prius is reversed, the special injunction dissolved, and the case remanded for further proceedings.

[At the time of writing the foregoing opinion, the court had not been referred to the Debates on the Registry Law in the Convention of 1837. Indeed it was stated in argument, that the debates in committee of the whole were not published. Since then the following information has been supplied. The amendment of Mr. Sterigere, referred to in the opinion, was presented to the report on the 3d article, when in committee of the whole, and not to the report on the 9th article. It will be found on the 29tli page of the 3d vol. Debates of Convention; and was afterwards divided, leaving the" question on the 2d clause in 'these Words (see page 57): “ The election laws shall be equal 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.” The vote on this branch stood 49 to 67 (see page 81); and the amendment was therefore disagreed to. The debate on the registry question occupies fifty-two pages, and the constitutionality of such a law was fully discussed by some of the ablest men in the convention. The vote against the amendment was therefore most decisive; and hence but little was said when Mr. Sterigere offered it again on the second reading of the report on the 9th article, and it was suffered to fall by the call of the previous question.]