State v. Butts | Cases | Westlaw

The question in this case is as to the constitutionality of the registration act. Laws 1879, c. 80. It is objected—First, that it conflicts with section 17, art. 2, of the constitution, the section which requires that all laws of a general nature shall have a uniform operation throughout the state. The act in terms only applies to cities of the first and second class. The objection is not well taken. It is true that the constitution directs the legislature to enact suitable registration laws. Article 5, § 4. It may be that this implies the registration of all voters. But the manner of registration is not prescribed. This is left to the discretion of the legislature. “Such laws as may be necessary” is the language. Who besides the legislature, the law–making body, can decide this question of necessity? It may deem one provision adequate for country precincts, while the conditions of city life require other and more stringent rules. Obviously, the conditions and dangers are different, and, if it may prescribe one rule for cities and one for rural districts, then a separate law for either is good, and the validity of neither will depend on the terms nor even the existence of the other. There is no difference between this and other subjects of legislation; and if the law applies to all matters and things of the same nature and in the same condition, the courts may not interfere because it does not reach to matters of a different nature or in a different condition. Such is the general import of our decisions, as well as of those of other states.

The second objection is that it places an additional qualification on the right of suffrage. Who are electors and who may vote is defined by the constitution. Every one having the qualification prescribed is entitled to vote, and to say that he must also be registered is to prescribe an additional qualification. This is the only substantial question in the case. Upon it courts have differed. It is well in the first place to see what the provisions of the registry law are: The city clerk is made the registering officer, and a poll–book is required to be kept in his office at all times. Sections 2, 3. All citizens *619 must be registered annually, and registration is prima facie evidence of the right to vote at any election during the year of the registry. Section 4. The clerk is required to give 10 days' notice in some newspaper, immediately on receipt of the poll–book, that it is open for registry. Section 5. The poll–books are to be opened at all times during the year for registration, except during the 10 days prior to any election; and of the closing of the books prior to such election, the clerk is to give at least five days' notice by publication for three days in some newspaper. Section 6. The registration book is to contain the date of registering, the name of the person registered, his age, occupation, and residence. Section 7. No person is to be registered unless he personally appears before the city clerk, at the city clerk's office, and gives his name, age, etc., as required, to be entered in the registration book. Section 8. No person is allowed to vote unless registered, but the registry is not conclusive evidence of his right, and he may be challenged on election day at the polls. Section 9. The clerk will give to each person registered a certificate thereof. Section 10. The city clerk is authorized to administer all necessary oaths, to examine the applicant for registering or any witness he may offer in his behalf, in order to ascertain his right to be registered. If he will be entitled to vote at the next ensuing election he shall be registered; otherwise not. Section 11. On change of residence during the year, the change is to be noticed on the registry. Section 12. The city clerk, immediately upon the close of the poll–books preceding any election, shall make a true, correct, and certified copy thereof, and deliver the copy for each ward, at the voting precincts of such ward, to one of the judges of election. Section 13. And at every election, as each person registered, votes, one of the judges shall enter on such copy, in the check line opposite the name of such person, the word “voted.” This copy, after the election, is to be returned to the city clerk, and by him preserved. Section 14.

Other provisions prescribe penalties for violations of this statute. It is evident that a proper enforcement of this statute, in securing 10 days before every election a full registry of all persons entitled to vote, furnishes a very efficient check against fraudulent voting. At any election in which much interest is felt, and where the opposing parties are supposed to be nearly equal in numbers, most careful scrutiny will be made of these registry lists, every voter's name and residence taken, and his right to vote verified by examination. The matter will not be left to the pressure and excitement of election day, but will all be ascertained and determined prior thereto. The value of such a registry for the preservation of the purity of the ballot–box cannot be too highly estimated. The specific objections made to the validity of the statute are that the registry is to be completed 10 days before any election, and that one who is not thus registered cannot vote, notwithstanding he possesses all the qualifications of an *620 elector prescribed by the constitution; and also that the city clerk is given the power to determine who is and who is not entitled to registry, and therefore practically determines who may and who may not vote. The first of these, as heretofore stated, is really the serious objection. Cooley, in his work on Constitutional Limitations, 601, makes these observations upon this question: “In some of the states it is regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. By this arrangement the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise. Electors, also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has been sometimes claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding another test to the qualifications of electors, which the constitution has prescribed, and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fundamental law. This position, however, has not been accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.”

In support of the conclusions expressed by him may be cited the following cases: Capen v. Foster, 12 Pick. 485, where the question is fully and exhaustively considered by Chief Justice SHAW; Hyde v. Brush, 34 Conn. 454; People v. Kopplekom, 16 Mich. 342; Edmunds v. Banbury, 28 Iowa, 267; People v. Laine, 33 Cal. 55; Webster v. Byrnes, 34 Cal. 273; Byler v. Asher, 47 Ill. 101; People v. Wilson, 62 N. Y. 186; Davis v. School–dist. 44 N. H. 398; Patterson v. Barlow, 60 Pa. St. 54; Auld v. Walton, 12 La. Ann. 129; Harris v. Whitcomb, 4 Gray, 433; and against those conclusions, Page v. Allen, 58 Pa. St. 338; Dells v. Kennedy, 49 Wis. 555; [S. C. 6 N. W. Rep. 246, 381.]

It is true that in some of the states from which those decisions are cited the statute provided that a person not registered might, on producing certain affidavits on the day of election and furnishing certain reasons for failure to register, be allowed to vote. So that all those decisions do not meet the precise objection raised here. But it is also true that the decisions against the conclusions of Justice COOLEY were all of them by divided courts, so that we think the weight of *621 authority is with that author. We think, too, the decision is right on principle. Our constitution (article 5, § 4) requires that the legislature shall pass such laws as may be necessary for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established.” It seems to us that this manifestly contemplates a registration prior to the day of election. It will be borne in mind that at the time this constitution was adopted the uniform practice as to elections was to keep a list of those who voted. It was also the privilege of every citizen to challenge the vote of any one offering to vote whose right to vote he suspected, and the party challenged was called upon to prove, by his own oath or otherwise, his possession of the qualifications of an elector. So that when the framers of the constitution introduced this section into it something more was intended than the mere preservation of a poll–list on the day of election and the ascertaining of the qualification of the voters by challenges on that day. Obviously, what was contemplated was the ascertaining beforehand by proper proof of the persons who should, on the day of election, be entitled to vote, and any reasonable provision for making such ascertainment must be upheld. Requiring a party to be registered is not in any true sense imposing an additional qualification any more than requiring a voter to go to a specific place for the purpose of voting, or requiring him to prove, by his own oath or the oaths of other parties, his right to vote when challenged, or than requiring a naturalized foreigner to present his naturalization papers. Each and all of these are simply matters of proof—steps to be taken in order to ascertain who and who are not entitled to vote. Doubtless, under the pretense of registration and under the pretext of securing evidence of voters' qualifications, laws might be framed which would cast so much burden as really to be imposing additional qualifications. As, for instance, suppose the law required all voters in the state to be registered on personal attendance at the state capitol on the first day of the year for every election taking place during the year. The legislature cannot, by, in form, legislating concerning rules of evidence, in fact, overthrow constitutional provisions. County Seat of Linn Co. 15 Kan. 500. But where ample facilities for registering are furnished, and the opportunities for registering are continued down to within a reasonable time of the election day, then it cannot be said that mere rules of evidence are abused.

Neither is there any magic in the mere day of election. It seems to be conceded that proof can be required, provided only it is required on the day of election, but it is easy to conceive of many requirements in force only on the day of election, which would really be more burdensome and more in fact like to additional qualifications than anything contained in the statute in question. Suppose the law required every voter in the county to present himself on the day of election at the office of the county clerk and obtain from him, upon proper proof, a certificate of qualification, or suppose the law required *622 him to remain in attendance at the polls from sunrise to sunset in order to give any one who desired an opportunity to challenge. Or even supposing every voter was required to produce a dozen affidavits in writing of as many different persons, showing age, and residence, such as are among the qualifications of an elector. All of these contemplate action on the day of election, and on that day alone, and they all bear upon the question of having the right to vote, and yet they would be clearly an abuse of rules of evidence. They would be more in the nature of additional qualifications than the simple matter of registry. It is true, isolated instances may occur where a party, through absence or sickness, is unable to register, and so loses his vote; but the same result may follow where any failure to produce the required evidence occurs. A naturalized foreigner may lose his naturalization papers, and the court where he was naturalized may be at the very extreme of the land, and so, for lack of the legal evidence of his naturalization, he may lose his vote. But still in both cases the matter is simply one of a lack of evidence. It is a mistake to suppose that there is any special virtue in the mere day of election. If the legislature has the right to require proof of a man's qualification, it has a right to say when such proof shall be furnished, and before what tribunal, and unless this power is abused the courts may not interfere. It cannot be held that, when the poll–books are open through the entire year up to within 10 days of the election, and in a public office in the city, there is any abuse as to either the time or manner of obtaining a list of legal voters. Several of the states have constitutional provisions concerning registration of voters, viz., Alabama, ArKansas, Colorado, Florida, Missouri, Nevada, North Carolina, Rhode Island, Virginia, and West Virginia. Some of these are worthy of notice. That of Missouri (Const. 1875, art. 8, § 5) provides that the general assembly shall provide by law for the registration of all voters in cities and counties having a population of more than 100,000 inhabitants, and may provide for such registration in cities having a population exceeding 25,000 inhabitants, and not exceeding 100,000; but not otherwise. This very plainly recognizes the distinction between the necessity of registration in crowded settlements and that where the population is limited and scattered. That of West Virginia (1872, art. 6, § 43) prohibits the legislature from ever authorizing or establishing any board or court of registration of voters. Obviously, the conviction was that, in the absence of such prohibition, the power of the legislature in this respect was ample.

In conclusion, we think it may be affirmed that, under the requirements of our constitution, it is the duty of the legislature to provide for a registration of voters; that it may provide that such registration be completed prior to the day of election, providing that ample facilities and time for registering are prescribed; and that it may also provide that one not registered shall not be allowed to vote. So far *623 as the suggestion that the city clerk may refuse registering to a voter who is entitled thereto is concerned, it is enough to say that the courts are always open to correct any wrong of that nature whether done by the city clerk or the judges at election. We think the ruling of the district court was wrong. The judgment must be reversed and the case remanded, with instructions to overrule the motion to quash the information.