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People v. Hoffman
Supreme Court of Illinois.March 27, 1886116 Ill. 5875 N.E. 59656 Am.Rep. 793 (Approx. 16 pages)
People v. Hoffman
Supreme Court of Illinois.March 27, 1886116 Ill. 5875 N.E. 59656 Am.Rep. 793 (Approx. 16 pages)
116 Ill. 587
Supreme Court of Illinois.
PEOPLE
v.
HOFFMAN and others. (quo Warranto.)
PEOPLE ex rel. BROWN
v.
PRENDERGAST, CO. Judge, etc. (Mandamus.)
PEOPLE ex rel. ADAIR
v.
SAME. (Mandamus.)
In re Petition of BROWN. (Objection of WETHERELL.) (Error to Circuit Court, Cook County.)
In re Petition of BROWN. (Objection of ADAIR.) (Error to Circuit Court, Cook County.)
WETHERELL
v.
DIVINE. (Bill for Injunction.)
WETHERELL
v.
SEIPP. (Error to Circuit Court, Cook County.)
Filed March 27, 1886.
Attorneys and Law Firms
*593 **597 H. B. Hurd, Adolph Moses, and George Scoville, for appellants in first case.
Abram M. Pence, James W. Beach, John D. Adair, and H. O. McDaid, for appellees.
James H. Miller, also for appellees.
W. C. Goudy, of counsel, for appellees.
James W. Beach and John D. Adair, for petitioners in mandamus cases, respectively.
F. H. Winston, Jr., for the City of Chicago, and for its officers, Divine and Seipp.
Opinion
*594 MAGRUDER, J.
The question presented by this record is the constitutionality of an act of the legislature of this state commonly known as the ‘Election Law,’ approved June 19, 1885, in force July 1, 1885, and entitled ‘An act regulating the holding of elections, and declaring the result thereof, in cities, villages, and incorporated towns in this state.’ The law may be found in chapter 46 of the Revised Statutes of 1885, p. 550. An extended statement of its provisions here is unnecessary.
It is claimed that the act in question is such a local or special law as is prohibited by section 22 of article 4 of the constitution. That section provides that the general assembly shall not pass local or special laws for certain specified objects, and among them, for ‘the opening and conducting of any election or designating the place of voting.’ The feature of the act which is especially insisted upon as showing it to be local and special in its character is the provision which is made for submitting the question of its adoption to the votes of the electors in any city, village, or town. It is charged that the act was passed for the benefit of the city of Chicago, and that, having been adopted by that city, and by the town of Lake, in the county of Cook, but not elsewhere, it is in force only in one locality. It is said that, inasmuch as it operates solely and exclusively upon the particular city, village, or town which **598 adopts it, and not upon all the cities, villages, or towns in the state, it is special and local in its application, and therefore forbidden by the constitution.
Laws which depend for their operation upon the votes of the people have sometimes been held to be unconstitutional, as involving a delegation of legislative authority. In this state, however, they have been held to be valid. The case of People v. Reynolds, 5 Gilman, 1, decided that such laws were perfect and complete when they left the hands of the *595 legislature, although they might not take effect until the happening of some future event or contingency arising from the voluntary act of others. It was there said:
‘We may well admit that the legislature cannot delegate its general legislative authority. Still, it may authorize many things to be done by others which it might not properly do itself.’ People v. Salomon, 51 Ill. 37; Erlinger v. Boneau, Id. 94; Guild v. City of Chicago, 82 Ill. 472.
In the case of Home Ins. Co. v. Swigert, 104 Ill. 653, we again said:
‘Whatever the rule may be in other states, it is well settled in this, as will appear from the cases just cited, that it is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend upon some contingency, as upon an affirmative vote by the electors of a given district.’
But it is contended that, although statutes which are passed in reference to other subjects may be made to depend for their future effect upon the votes of the people, yet such a feature cannot be embodied in any law which has reference to the particular subjects enumerated in section 22 of article 4 of the constitution. The reason assigned for this position is that the restriction of a law's operation to the cities, villages, or towns which may vote to adopt it, necessarily, and from the nature of things, makes it local and special. A statute, however, may not only be ‘perfect and complete’ according to the ruling in People v. Reynolds, but also general in its character, even though it does not take effect until the happening of some future contingency.
Corporations are organized every day under an ‘Act concerning corporations' for pecuniary profit, found in the thirty-second chapter of the Revised Statutes. When this act first became a law, on July 1, 1872, it had nothing whatever to operate upon. Its provisions were suspended until some corporation was formed to call them into action. When the first company was organized under it, it was in force as to that alone. Upon the *596 formation of the second it was only operative as to two companies, and no more. It was none the less a general law because the objects upon which it took effect came into being at different times, and not all at once. Hundreds of corporations formed in pursuance of its terms are now doing business in the state.
In 1872 the legislature of Illinois passed an ‘Act to provide for the incorporation of cities and villages.’ Rev. St. c. 24. The incorporation of cities and villages is one of the subjects about which section 22 of article 4 of the constitution forbids the passage of local or special laws. This act contains all the provisions essential to a complete municipal **599 code. Moreover, it starts out with an adopting clause. The first three sections of its first article provide that ‘any city now existing in this state’ may become incorporated, provided that upon the petition of one-eighth of its legal voters, and at an election to be held as therein directed, the majority of the votes cast in such city shall be in favor of organizing under said act. On July 1, 1872, that act was in a certain sense dormant. Until some city or village should vote in favor of accepting it there was nothing for it to operate upon. When the first city adopted it, its provisions took effect as to the municipal affairs of that city, but of no other. It was for the time being in force in one locality alone, and not elsewhere. Notwithstanding these features, we say of it in Potwin v. Johnson, 108 Ill. 70: ‘After full consideration and reconsideration we are as firmly committed to the doctrine as we can be to any doctrine, that the act in relation to cities and villages is a general law, and not local or special.’
If the act for the incorporation of cities and villages is a general law, in spite of the fact that by its terms it is restricted in its operation to those cities and villages only which vote to adopt it, then the election law now under consideration cannot be considered local or special because it *597 contains a similar restriction. The title of the election law is general. It is an act for holding elections, and declaring their result, not in any particular city, town, or village, but in all ‘cities, villages, and incorporated towns in this state.’ Its terms are general. It provides that the electors, not of one city or of two or three cities, but of ‘any city now existing in this state, may adopt and become entitled to’ its benefits. It furnishes the machinery, not for one election, but ‘for all elections, general, special, local, municipal, state, and county, and all others of every description.’ If it has not yet been adopted elsewhere than in Chicago and the town of Lake, it is for the present only operative upon elections there held. But its terms are such that it may hereafter be accepted by other cities and towns. ‘All that is practicable or could have been intended was that the legislature should, by a general law, provide for holding elections, and declaring their result, in cities, towns, and villages, leaving it to those interested to bring them within its operation.’ Guild v. City, supra; Town of Fox v. Town of Kendall, 97 Ill. 72; Hundley v. Commissioners of Lincoln Park, 67 Ill. 559.
Whether laws are general or not does not depend upon the number of those within the scope of their operation. They are general, ‘not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the laws.’ Nor is it necessary, in order to make a statute general, that ‘it should be equally applicable to all parts of the state; it is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute.’ People v. Wright, 70 Ill. 388; People v. Cooper, 83 Ill. 585. This election law is not local or special because of the limited number of cities, towns, and villages which may have adopted it. It may rather be said of it that **600 it is general because of the possibility that all the cities, towns, and villages in the state may accept its provisions if they choose.
*598 It is to be noted that the ‘Act to provide for the incorporation of cities and villages' is in part an election law. Its fourth article provides for conducting elections, and declaring their results, in the cities and villages which adopt it. It is only in force in cities and villages which vote in favor of adopting it; therefore the cities and villages which have adopted it by their votes have at the same time adopted those parts of it which relate to the conduct of elections. In a number of decisions this court has declared the incorporation act constitutional; consequently the decisions so made are authority for the position that where a law which provides for conducting elections, and declaring their results, is restricted in its operation to the cities, villages, and towns which vote to adopt it, such a law does not thereby violate that part of the constitution which prohibits the legislature from passing local or special laws for ‘the opening and conducting of any election, or designating the place of voting.’
It is said that the law cannot be held to be constitutional consistently with the views of this court as expressed in the case of People v. Cooper, 83 Ill. 585. But it contains no such feature as subjected the city tax act to the condemnation of the court in that case. The city tax act attempted to confer upon the council of a city the power to assess and collect its taxes through certain officers named therein, or through certain other and different officers named in the general incorporation act. An option was conferred upon the city council to select either one of two sets of officers for the purposes named. This was held to be invalid, as ‘establishing dissimilarity in the powers and modes of different cities in the levy and collection of taxes.’ The case of People v. Cooper and the case at bar would be alike if the election law had left it optional with any city, town, or village which should adopt it, either to pursue the method of conducting elections provided for in the act, or to pursue the old method of conducting them provided for in the general *599 election law of this state. It does not, however, permit any such option. We are of the opinion that it is not a local or special law, within the meaning of those terms as used in section 22 of article 4 of the constitution.
It is said that the law is in conflict with that clause in the bill of rights which provides that ‘all elections shall be free and equal.’ Const. art. 2, § 18. In order to support this position, it is assumed that the word ‘equal’ means the same as the word ‘uniform,’ and it is then argued that, inasmuch as the cities, towns, and villages which adopt the law will conduct elections according to its provisions, while those which do not adopt it will conduct them according to some other and different provisions, therefore there will be no uniformity, and in consequence no freedom or equality. The declaration in the bill of rights that all elections must be equal does not necessarily mean that there must be uniformity of regulation in regard thereto in all portions of the state. That the definition of ‘equal elections' does not include and involve the idea of uniformity in regulation is apparent from the considerations already **601 presented upon the question of whether the law is general or special. It being the settled policy in this state, both under the constitutions of 1848 and of 1870, that general laws, whether upon the subject of elections or upon any other subject, may be in force in localities which vote to accept them, though not in force in localities which do not vote to accept them, it necessarily follows that there will be a want of uniformity between the law in force in the adopting locality and the law in force in the non-adopting locality.
Elections are free when the voters are subjected to no intimidation or improper influence, and when every voter is allowed to cast his ballot as his own judgment and conscience dictate. Elections are equal when the vote of every elector is equal in its influence upon the result to the vote of every other elector; when each ballot is as effective as every other ballot. Where an election for or against the same candidates, *600 or for or against the same measure, takes place on the same day, in two different cities of the state, the fact that in one city the election officers make their returns to the city clerk, while in the other the returns are made to the county clerk, cannot possibly make any difference in the freedom or equality of the election. Cooley, in his work on Constitutional Limitations, classifies the provisions which usually occur in bills of rights. He places the declaration that ‘all elections shall be free and equal,’ along with the declaration that ‘all freemen are equal,’ in the first class of such provisions which he denominates ‘those declaratory of the general principles of republican government.’ Cooley, Const. Lim. 45. It was never heard of as a general principle of republican government that the mode of conducting an election, and declaring its result, in one city, village, or town of a state shall be exactly the same as the mode pursued for the same purpose in every other city, village, or town in the state. This general declaration has reference to the rights of the individual voter. It does not refer to uniformity of election procedures in different communities. A somewhat similar but more enlarged view of the meaning of the phrase ‘all elections shall be free and equal’ has been expressed by the supreme court of Pennsylvania in Patterson v. Barlow, 60 Pa. St. 54, and will be referred to in another part of this opinion. The objection that the law is in conflict with the bill of rights has no force in the light of these definitions.
The mode of appointing the election commissioners is attacked as unconstitutional. The act provides (article 2, § 1) for the creation of a board of election commissioners, consisting of three members, and directs that they shall be appointed by the county court of the county in which the city, village, or town adopting the law is located. Article 2 of the constitution of 1848, and article 3 of the constitution of 1870, declare that the powers of the government shall be divided into three distinct departments, the legislative, executive, and judicial, *601 and that no one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted by those instruments. It is urged that the appointment of the commissioners cannot be lodged with the county court, because such appointment involves an exercise of **602 political power, while the functions of the county court are exclusively judicial. The provision made for the jurisdiction of county courts in the present constitution is very broad. Section 18 of article 6 gives those courts jurisdiction in certain specified matters, ‘and such other jurisdiction as may be provided for by general law.’ This grant is liberal enough, on the face of it, to authorize the legislature to extend the jurisdiction of the county courts to almost any subject. If, however, the constitutional division of the powers of government into three branches should be construed as a limitation of this jurisdiction to judicial subjects alone, an examination of the act will show that many of the duties to be performed under it are of a judicial nature. The commissioners consider evidence, and decide whether the judges of election have properly or improperly refused registration. The county court reviews the decision of the commissioners, and in so doing also passes upon the weight of evidence. The exercise of such functions as these is appropriately delegated to a judicial tribunal.
But it is urged that elections belong to the political branch of the government, and that these commissioners, in so far as they execute and enforce the law in reference to the conduct of elections, are to be considered and treated as political officers. Even if this be so, the power of the judiciary to appoint certain officials whose duties are not strictly judicial, nor even necessarily connected with the business of the courts, has been fully recognized in this state.
In People v. Williams, 51 Ill. 63, and People v. Morgan, 90 Ill. 558, a statute which authorizes the circuit court of Cook county to appoint assessors and commissioners for the South park, *602 located in that county, was held to be constitutional. In the latter of these two cases the point was expressly made that the circuit judge could not appoint a South park commissioner, on the ground that he was thereby exercising an executive or political function forbidden by article 2 of the constitution of 1848. The point was, however, overruled, and the power of the court to make the appointment was sustained. It may be here remarked that the commissioners under the park act are authorized to appoint engineers, surveyors, elerks, and other subordinate officers, including such a police force as may be necessary; as, in the case at bar, the commissioners are authorized to select election judges and clerks.
In People v. Morgan numerous examples are given of official appointments made by the courts, and it is there said:
‘If it were conceded that these appointments were the exercise of political power, would it necessarily be violative of any provision of the constitution? The division and allotment of the powers are not into political, executive, and judicial, but into legislative, executive, and judicial. It was no doubt the exercise of political power, as that embraces all governmental powers and functions, whether exercised by one department or another, or the officers of one or the other. Political power is the policy of government or its administration, and may be exercised either in the formation or administration of government, or both. Hence it follows that if it be a political power, that, of itself, in nowise militates against its exercise by a person belonging to the judicial department of the government. * * * All three departments aid **603 in the administration of government, but perform different functions. The elector who votes for an officer or measure exercises political power; yet no one would claim that, because a judge was a person belonging to the judicial department, he was prohibited from thus voting. We therefore conclude that, if the power to appoint to office is a *603 political function, this article (2) of the constitution does not prohibit its exercise because the power is political.’
Recent legislation in this state has conferred upon the county courts the power to appoint drainage commissioners, and numerous decisions of this court have sustained the constitutionality of such legislation. Moore v. People, 106 Ill. 376; Blake v. People, 109 Ill. 504; Kilgour v. Drainage Com'rs, 111 Ill. 342; Huston v. Clark, 112 Ill. 344; Owners of Land v. People, 113 Ill. 296. In Owners of Land v. People it is said:
‘Official duties are supposed to be susceptible of classification under the three heads of legislative, executive, and judicial, corresponding to the three departments of government bearing the same designations; but the classification cannot be very exact, and there are many officers whose duties cannot properly, or at least exclusively, be arranged under either of these heads.’
Section 2012 of the United States Statutes at Large authorizes the circuit courts of the United States to appoint, ‘as supervisors of election, two citizens, residents of the city or town or of the election district or voting precinct in the county or parish, who shall be of different political parties, and able to read and write the English language.’ In Ex parte Siebold, 100 U. S. 371, the constitutionality of this section was sustained by the supreme court of the United States. The point was there made that the United States circuit courts had not the power to appoint supervisors of election, on the ground that the duties of such courts were judicial, while the supervisors of election were officers whose duties were executive in their character. It was held, however, that ‘congress had the power to vest the appointment of the supervisors in question in the circuit courts.’ The court said in that case:
‘It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department, to which the duties of such *604 officers appertain. But there is no absolute requirement to this effect in the constitution, and if there were it would be difficult in many cases to determine to which department an office properly belonged.’
But the question is not as to the department to which the election commissioners properly belong, or to which the functions which they perform legitimately appertain. The question is what department, in the absence of an election, can constitutionally confer on them the power to perform their duties. ‘It is not whether the general assembly, the executive, or the judiciary are the best qualified to select and appoint such officers, but where is the power to do so lodged?’ People v. Morgan, supra. The original power to fill all offices rests with the people. The constitution, in section 10 of article 5, provides for the appointment of certain officers by the governor; but the reasoning in People v. Morgan shows that it was never intended to vest in the governor the selection of such local and municipal officers as these commissioners. The power to **604 appoint officers of this class is not specifically designated in the constitution as either a legislative, judicial, or executive power. It is not therein specifically conferred on either department, nor is there anything therein expressed which either directly or impliedly prohibits the legislature from authorizing the county court to appoint the commissioners. Therefore the authority conferred on that court to do so does not make the act invalid. The law-making powers of the states can do any legislative acts not prohibited by the state constitutions. ‘Without and beyond these limitations and restrictions they are as absolute, omnipotent, and uncontrollable as parliament.’ Mason v. Wait, 4 Scam. 127.
One of the counsel for appellants deprecates the policy of placing the selection of election officers in the hands of the court, and predicts serious evils as likely to arise therefrom. If the unfortunate results which he anticipates were sure to follow, it is not the province of *605 this court to interfere. Where the legislature is acting within the conceded limits of its constitutional power, that body alone is responsible to the people for the policy as well as the mode of exercising such power.
Again, the law is said to be unconstitutional because it establishes a political test as a qualification for office. It authorizes the county judge to appoint these election commissioners, and provides that ‘two of such commissioners, at least, shall always be selected from the two leading political parties of the state, one from each of such parties;’ and in the selection, by the commissioners, of the three judges of election for each precinct, at least one judge shall be selected from each of the two political parties or organizations of the state. It will be seen that one of the commissioners and one of the election judges in each precinct need not necessarily be a member of either of the leading political parties, but may belong to some third party, or to no party at all. The provision of the constitution which is said to be violated by the feature of the law now under consideration is section 25 of article 5. That section, after directing that ‘all civil officers,’ with certain exceptions therein named, ‘shall, before they enter on the duties of their respective offices, take and subscribe’ an oath to support the constitutions of the United States and of Illinois, and to faithfully discharge the duties of the office, etc., then declared as follows: ‘And no other oath, declaration, or test shall be required as a qualification.’
If the election law had required either of the commissioners or judges to take an oath as to his political opinions, or that he belonged to one or the other of the leading political parties, there might be some force in the objection here made. But the law makes no such requirement. The direction to select from the two leading political parties is a rule for the guidance of the appointing officer, and imposes no act or exaction upon the officer appointed. That which cannot be required of the appointee is any ‘other oath, declaration, or *606 test’ than the oath set out in section 25. The words ‘oath, declaration, or test’ are almost synonymous terms. They do not refer to the opinions which a man may be known to entertain, and for which he may be selected to fill a public position; they are intended to designate the mode in which a man may be required to give **605 expression to his opinions. If a man is asked to swear to his opinions, an oath is required of him; if he is asked to declare what his opinions are, a declaration is required of him; if he is asked to make an affirmation as to his opinions, or, by word of mouth or in writing, to state and give utterance to his opinions in some other way then by an oath or declaration, then a test is required of him. Section 25 requires him to take and subscribe no other declaration or test than the particular oath whose terms are given. The word ‘test’ originally acquired its signification in connection with the word ‘oath.’ Every student of history knows how odious the test act passed in the reign of Charles II., and which required a test oath as a condition to the holding of public office, became in the course of time to the English people. Blackstone states that the ‘test act was passed to secure the established church of England against perils from non-conformists of all denominations,—infidels, Turks, heretics, sectaries,’ etc. It directed ‘all officers, civil and military, to take the oaths and make the declaration against transubstantiation, in any of the king's courts,’ etc., and also ‘to receive the sacrament of the Lord's supper, according to the usage of the Church of England, in some public church, immediately after divine service and sermon, and to deliver into court a certificate thereof, signed by the minister and church warden, and also to prove the same by two credible witnesses,’ etc. 4 Bl. Comm. 59. The framers of our state constitutions understood the word ‘test’ in the sense here indicated.
*607 The law states that the two commissioners to be chosen from the two leading political parties must be men of ‘well-known political convictions.’ If they are to be men whose views on political questions have already become known in the communities where they live, before they are selected for the board of election commissioners, it cannot be said that they are required to submit to any political test to determine what their views are. They are also required to be men of integrity. The county judge cannot decide whether or not they are men of integrity except from the reputations which they bear in the city, town, or village where they reside, just as he decides from their reputations what their political convictions are. If it cannot be said that, because they are required to be men of integrity, another qualification besides the constitutional oath is exacted of them as a test for holding office, then why can it be said that, because they are required to be men who are well known to be connected with one or the other of two leading political parties, they are thereby required to submit to some other test than the prescribed oath before they can be appointed? An election is an expression of the popular will, which necessarily has two sides to it. At every election there are those who vote for some candidate or measure, and there are those who vote against such candidate or measure. In republican governments men arrange themselves into these two classes, according to their political views and their party preferences. It strikes the average mind as being eminently fair that the votes should be received and counted by men who represent both sides, rather than by men who represent one side only.
**606 We have been referred to the case of Attorney General v. Board of Councilmen of Detroit, 24 N. W. Rep. 887, where the supreme court of Michigan hold a different view from that which is here expressed. But we do not concur in the reasoning of the opinion in that case. In a case in New York, (Barker v. People, 20 Johns. 457; affirmed, 3 Cow. 686,) *608 the same interpretation was given to the words now under discussion as is here announced. Chief Justice SPENCER there says:
‘As to the oath of office prescribed by the sixth article of the constitution, and the provision that no other oath, declaration, or test shall be required, it is contended that the word ‘test’ has a most extensive meaning, and prohibits the establishing any other rule, by which the capacity of a person to hold an office shall be determined, than that defined, the oath of the person appointed or elected. I cannot accede to this. In my judgment, the exclusion of any other oath, declaration, or test as a qualification for an office or public trust, means only that no other oath of office shall be required. * * * The provision that no other oath is to be required as a test imports nothing with respect to the other qualifications.'
In Patterson v. Barlow, 60 Pa. St. 54, the supreme court of Pennsylvania say, in regard to a similar provision in a registry law of that state:
‘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?’
Section 2012 of the United States Statutes at Large, above quoted, and which was held to be constitutional in Ex parte Siebold, supra, provides that the two supervisors of election to be appointed by the federal circuit courts shall be ‘of different political parties.’ The validity of this section, though not directly passed upon, was recognized in Re Appointment of Supervisors of Election, 20 Blatchf. 13; S. C. 9 Fed. Rep. 14. We are of the opinion that the election law does not establish any such political test as is repugnant to the twenty-fifth section of article 5 of the constitution.
*609 The next objection to the constitutionality of the law has reference to the provisions therein made for the registration of voters. It is claimed that the regulations upon this subject are so onerous and unreasonable as seriously to impede, if not actually to prevent, the exercise, by the voter, of his constitutional right of suffrage. The weight of authority in this country is in favor of the power of the legislature to enact registration laws. Such power exists as well where the constitution is silent upon the subject as where it expressly enjoins the passage of such an enactment. Cooley, Const. Lim. *601; Capen v. Foster, 12 Pick. 485.
In Illinois, the constitution of 1848 made no provision for any action of the legislature in reference to the registration of electors. While, however, that instrument was in force, and in the year 1865, the legislature passed ‘An act for the registry of electors, and to prevent fraudulent voting.’ Pub. Laws Ill. 1865, p. 54. An examination of this act of **607 1865 will show that many of its provisions are similar to those of the act now under review. It is objected to the present law that it requires the officer to be ‘convinced’ of a voter's qualifications; the old law required the officer to be ‘satisfied.’ It is objected to the present law that it provides for action where the officer ‘suspects' a want of qualification; the old law required the administration, to a challenged applicant for registration, of the same oath which, under the election law then in force, was administered to a challenged voter, if ‘either of the judges should suspect that such person was not a qualified voter.’ Gross, St. 1871, p. 246. It is objected to the present law that it requires the ‘supporting’ affidavit to be on ‘knowledge’ instead of ‘on belief;’ the old law required the same registered voter to prove his residence by the oath of a householder who should ‘know such person to be an inhabitant of the district,’ etc. The act of 1865 was decided to be valid, under the constitution of 1848, in the case of Byler v. Asher, 47 Ill. 101. *610 It was there held that the judges of election properly refused to allow a party to vote whose name was not on the register, and who did not offer to prove, by oath of a ‘householder and registered voter’ who knew him to be such, that he was an inhabitant of the district. In that case the late Justice WALKER said:
‘There can be no question that the legislature may provide all reasonable safeguards to preserve the ballot-box from fraud, and to maintain the purity of our elections. As the wisdom of our laws, the fair and impartial administration of justice, depends upon the officers, chosen by the people, and even the perpetuity of our present form of government can only be maintained by preserving our elections free from fraud and corruption, all reasonable requirements for the purpose, not calculated to abridge the elective franchise, are within the scope of legislative power.’
It was also held in that case that the fact that the judges were acquainted with the party not allowed to vote, and knew that he resided in the precinct, and had previously been in the habit of voting there, did not authorize them to dispense with the proof required by the statute. The registry act of 1875 was in force, and the decision of Byler v. Asher, holding that act to be valid under the constitution of 1848, had been rendered, when the present constitution was adopted in 1870. The latter instrument provided (section 1 of schedule) ‘that all laws in force at the adoption of this constitution, not inconsistent therewith, * * * shall continue to be valid, as if this constitution had not been adopted.’ Nothing can be pointed out in the act of 1865 which is inconsistent with the constitution of 1870. That act, therefore, continued to be as valid under the constitution of 1870 as it had been under the constitution of 1848. It follows that the present constitution, adopted in 1870, by continuing the validity of the registry law of 1865, impliedly recognizes the power of the legislature to enact statutes for the registration of voters. *611 But, even if the recognition here indicated cannot be fairly implied, the power exists independently of any such implication. First. The legislature possesses all the law-making power of the state which the constitution does not expressly or impliedly prohibit it from exercising. There **608 is no prohibition, either express or implied, in our present constitution against the passage by the legislature of registry laws. Second. By presenting certain qualifications for votes, the constitution necessarily intended that the legislature should provide some mode of ascertaining and determining the existence of these qualifications. A registry law is merely a mode of ascertaining and determining whether or not a man possesses the necessary qualification of a voter.
The constitution says, (article 7, § 1:)
‘Every person having resided in this state one year, in the county 90 days, and in the election district 30 days next preceding any election therein, * * * who shall be a male citizen of the United States, above the age of 21 years, shall be entitled to vote at such election.’
There must be some tribunal to decide whether or not a person is a citizen of the United States over 21 years of age, and has resided in the state one year, in the county 90 days, and in the district 30 days. There must be some fixed rules and regulations by which such tribunal is to be guided in determining this fact of citizenship and these periods of residence. There must be a statute which shall designate the tribunal, and prescribe the rules and regulations. The passage of such a statute is the legitimate province of the legislature alone.
It being conceded, then, that the power to enact a law for the registration of voters is vested in the legislature, the only question for this court to determine is whether the particular enactments now under consideration is such an arbitrary and unreasonable exercise of the power in question as to amount to a violation of section 1 of article 7 of the constitution, above quoted. Without commenting upon all the objections made *612 by counsel for appellant, it is sufficient to say that the requirements in regard to registration which are chiefly objected to are—First, those which concern the mode of ascertaining who is entitled to be registered; second, those which have reference to the time or times at which registration must take place.
In order to determine who are qualified to vote, the law constitutes the judges of election, in each precinct, a ‘board of registry,’ and provides for an appela from the board of registry to the board of election commissioners, and from the latter board to the county court. It limits the number of voters in each precinct to 300, ‘as nearly as practicable.’ The board of registry must sit two full days from 8 o'clock in the morning until 9 o'clock in the evening of each day, to hear applications for registration. Applications to be put on the registry list must be made in person. Applicants are examined under oath touching their qualifications. Where applicants are challenged, or objected to in writing, or suspected of not being qualified, after their registry, provision is made for further proofs. The two clerks of election in each precinct are required to act as canvassers, and canvass the precinct, in order to verify the statements of registered parties as to their places of residence. Copies of the registry lists must be hung up at the places of registration, so that they can be subject to public inspection. No name can be erased from the registry without notice to the party concerned; and where any person **609 is denied registry, or the name of any person is erased after registry, the right of appeal is secured as above stated. Further specification is unnecessary. We see nothing in any of these provisions which is sufficiently unreasonable to justify us in holding the act invalid. What evidence shall be required to establish a voter's qualification, and how that evidence shall be presented to the body acting upon it, is a matter of discretion with the legislature. This act demands more proof than the act of 1865 demanded, but *613 it is not for that reason unconstitutional. There is no more invasion of the sanctity of home in permitting an election canvasser to stop at a house, and inquire as to the names of the occupants, than there is in allowing an assessor to stop at the same house for the purpose of making inquiries as to the value of personal property. Inasmuch as the constitution directs that the general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes, (article 7, § 7,) it can be no invasion of private right to ask an applicant for registry to swear that he has not been convicted of such crime. In our government sovereignty rests with and emanates from the people. The people express their will through their votes. Hence the casting of a ballot is the exercise of sovereignty. It is not, therefore, unreasonable that he who claims for himself this highest of all privileges should establish his right by satisfactory proof.
But the time at which the registration is required to take place is the feature of the law which is most strenuously attacked. The board of registry in such precinct has its first meeting, for receiving applications to be placed on the registry list, on the fourth Tuesday, and its second meeting on the third Tuesday, before the election. A third meeting is held on the second Tuesday prior thereto, but only for the purpose of revising the registry. No new names are added after the third Tuesday, and ‘the vote of no one shall be received by said judges whose name does not appear upon said registers as a qualified voter.’ Article 4, § 229. It is said that the legislature has no authority to require that the registry be closed three weeks before the election; that it has no authority to prohibit a man from voting because he has not established his qualifications three weeks before the day for voting arrives. It will be noted that the registry law of 1865 differed from that of 1885 in that the former, although it required the registry board to meet three weeks before the election, yet permitted a party to vote who was not registered *614 if, on the day of election, he proved by his own affidavit, and the oath of a householder and registered voter, that he was entitled to vote. The new law, therefore, makes a radical change in the rule which has heretofore obtained in this state upon this subject.
If it be admitted that the legislature can require a voter to establish his qualifications before election, it is difficult to see why, upon principle, or as a question of power, it cannot require such proof to be made as well three weeks before the day for voting as ten days or five days or even one day prior thereto. The real question involved in the objection is whether any man can be prevented from voting who proves, or offers to prove, on the day on which he seeks to cast his ballot, that he is a **610 legal voter. If cases can be supposed where the ‘three-weeks' requirement will deprive qualified electors of the privilege of depositing their votes, cases can also be supposed where one day's requirement will work the same result. This mode of reasoning, carried out to its logical sequence, will make any kind of a registry law unconstitutional; for it would be a physical impossibility for the judges of the election to receive the votes and make up the register at the same time and on the same day. If the legislature has the power to direct the registry to be completed before election day, and if, in its wisdom and under a sense of its responsibility to the people, it has said that three weeks before election is a reasonable date for the completion of the registry, shall this court substitute its judgment for that of the law-making power, and say a shorter time would have been more reasonable?
‘The moment a court ventures to substitute its own judgment for that of the legislature in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference.’ Cooley, Const. Lim. *168. ‘The judiciary cannot *615 run a race of opinions, upon points of right, reason, and expediency, with the law-making power.’ Cooley, Const. Lim. *168.
In Prettyman v. Board of Sup'rs, 19 Ill. 406, this court said:
‘If a law is unwise, the legislature is responsible, and it is for their constituents to apply the corrective, and not for the courts, for that reason, to hold it void. We can only look to their power to act under the constitution, and not to the effects of their exercise of constitutional authority, in determining the validity of their acts.’
In the late case of Daggett v. Hudson, 18 Leg. News, 118, S. C. 3 N. E. Rep. 538, the supreme court of Ohio, after conceding the power of the legislature to pass a registration law, as well where the constitution is silent as where it speaks upon the subject, and after further conceding the necessity and desirability of such a measure to protect the purity of the ballot-box, pronounces unconstitutional a statute of that state which provides for the completion of the registry lists five days before election. Neither reason nor authority are so unmistakably on the side of the Ohio decision as to oblige us to follow it. Cooley, in his work on Constitutional Limitations, 601, and Chief Justice SHAW in Capen v. Foster, supra, both sustain the validity of statutes ‘requiring voters to be registered before the day of election, and excluding from the right all whose names appear on the list.’ Just how long before election the votes must be registered is a matter about which individuals and courts and legislatures may differ in opinion, but such differences of opinion do not affect the soundness of the principle. In Rhode Island an act requiring the registry lists to be closed four days before election has been sustained. In re Polling Lists, 13 R. I. 729. In State v. Butts, 31 Kan. 537, S. C. 2 Pac. Rep. 618, the supreme court of Kansas, in an able opinion pronounced by Judge BREWER, held that a statute of that state which directed the registration to be completed 10 days before election was constitutional. A **611 Pennsylvania *616 law which provides for closing the registry 17 to 23 days before election. Patterson v. Barlow, 60 Pa. St. 54. Similar provisions have been upheld in other states.
It may be that as much as three weeks will be required to make such investigations as are necessary to determine the qualifications of the electors. The register must be made, as nearly as possible, a correct record of qualified voters. The names of those who are not entitled to vote must be kept from the lists. The names which have been placed there by false or perjured testimony must be erased. Those whose applications to be registered have been refused must have an opportunity to appeal to a higher tribunal. Who shall decide just how much time may be needed to accomplish these ends?
All parts of the constitution must be construed together. If there is a provision that all persons possessing certain qualifications shall be entitled to vote, there is also a provision that all elections shall be free and equal. It is as much the duty of the legislature to pass measures for carrying the latter as for carrying the former provision into effect. Section 19 of schedule to constitution. If closing the registry lists three weeks before election may deprive a few persons, becoming qualified during that period, of the privilege of casting their ballots, keeping it open to a later day may admit to the polls hundreds of persons who should never have been allowed to vote. When the ballot-box becomes the receptacle of fraudulent votes, the freedom and equality of election is destroyed. That election is free and equal when all the qualified electors of the precinct are carefully distinguished, 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 *617 as will exclude the unqualified and allow the qualified only to vote. Patterson v. Barlow, 60 Pa. St. 54.
Where the law-making department of the government, in the exercise of a discretion, not prohibited by the constitution, that a certain period of time is needed for a specified investigation, it is not the duty of this court to declare that this period is unreasonably long. We are of opinion that the article on general and immediate registration is not repugnant to the constitution.
Many other objections have been made by counsel to the validity of the act, but we have taken notice here, and in Wetherell v. Devine, of all which we have deemed of sufficient importance to be discussed.
The law was not repealed by another act passed upon the same subject at the same session of the legislature.
The judgment of the court below is affirmed.
*631 MULKEY, C. J., and SCHOLFIELD, J.
We do not concur in so much of this opinion as holds that this law is not local. Reasons will be assigned hereafter. [See 8 N.E. 788. ]
NOTE.
In holding the statute providing for the board of registration commission of the city of Detroit unconstitutional, in Attorney General v. City of Detroit, (Mich.) 24 N. W. Rep. 887, referred to in the principal case, the court say:
‘In order to appreciate the bearing of the considerations presented on the case, it will be necessary to make some reference to the general elective system of the constitution itself. It is needless to explain that under that system the whole scheme of government, in every department, depends upon the action of the qualified voters in their electoral districts. All male citizens of lawful age, and some whose United States citizenship is incomplete, are entitled, after a certain term of residence, to vote in the township or wards in which they reside. Every vote, for any purpose whatever, is required to be cast in such township or ward. The only exception is in case of soldiers in the field during the war. All legislation imposing restraint or conditions upon voting must conform to the other clauses and provisions of the constitution. No part of that instrument can be allowed to override or destroy any other part. It is also well settled that our state polity recognizes and perpetuates local government through various classes of municipal bodies, whose essential character must be respected, as fixed by usage and recognition when the constitution was adopted; and any legislation for any purpose which disregards any fundamental and essential requisites of such bodies has always been regarded as invalid and unconstitutional. There is nothing in the constitution which permits the legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. And as the right of voting is the same everywhere, it is obvious that the conditions regulating the manner of exercising it must be the same in substance everywhere. The machinery of the government differs in its details in cities, villages, and townships, and of course in methods and officers to administer the election laws. But it cannot be lawful to create substantial or serious differences in the fundamental rights of citizens of different localities in the exercise of their voting franchises.
‘It is also a most important principle, under our constitutional system, that no one shall be affected in any of his legal and political rights by reason of his opinions on political subjects or other matters of individual conscience. The political right to freedom of belief and expression is asserted in the most distinct way, and applies to every privilege which the constitution confers. No one has ever supposed that any new condition could be added to those which the constitution has imposed on the right of suffrage, beyond such as are necessary to guard against double voting, or to prevent its exercise by those who are not legal voters. The only legitimate object of registration laws is to secure a correct list of actually qualified voters. Any attempt to inquire into the sentiments of the voters is not only an abuse, but one which it is the chief purpose of the ballot system to prevent. The ballot is a constitutional method which cannot be changed, and its perpetuation means the security to vote without any inquisition into the voter's opinion of men or measures; and it would be entirely meaningless if the voter's choice of candidates for any office must be made from any particular party or number of parties. But the constitution has made this more specific, (although this was hardly necessary,) by providing, after giving the form of an official oath, that ‘no other oath, declaration, or test shall be required as a qualification for any office or public trust.’'
All Citations
116 Ill. 587, 5 N.E. 596, 56 Am.Rep. 793| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |