Yates v. Collins | Cases | Westlaw

This action was instituted in the Kenton circuit court by the appellee, J. D. Collins, against the appellant, John C. B. Yates, clerk of the Kenton county court, to restrain him by injunction from carrying out the provisions of the act of the General Assembly of Kentucky approved February 11, 1904, entitled “An act to amend an act, entitled An act to regulate elections in this commonwealth, approved June 30th, 1892.” Acts 1904, p. 31, c. 6. It is conceded that the appellee is a male citizen, resident, and taxpayer of Kenton county, Ky.; that he possesses the qualifications, under the Constitution and laws of the state, which entitle him to vote at the approaching November election, and no objection is urged against his right to institute this action. Nor do we question his right to do so, for, in order to carry out the provisions of the act supra, some expense for printing must be incurred by each county of the state through its county clerk, which is required to be paid out of the county levy. If, therefore, the act in question is unconstitutional, this expense should not be placed upon the counties, and a taxpayer like the appellee has such an interest in the matter as will entitle him to sue, as he has done, to test its constitutionality.

Section 145 of the Constitution provides that: “Every male citizen of the United States of the age of 21 years, who has resided in this state one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the elections, shall be a voter in said precinct and not elsewhere; but the following persons are excepted and shall not have the right to vote: (1) Persons convicted in any court of competent jurisdiction of treason, or felony or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion *283 from the right of suffrage; but persons hereby excluded may be restored to their civil right by executive pardon. (2) Persons who, at the time of the election, are in confinement under the judgment of a court for some penal offense. (3) Idiots and insane persons.” Section 147 provides that: “The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of 5,000 or more; and may provide by general law for the registration of other voters in the state. Where registration is required, only persons registered shall have the right to vote. The mode of registration shall be prescribed by the General Assembly.” So much of section 147 as provides for registration in cities and towns having a population of 5,000 or more is clearly mandatory, and in pursuance thereof the General Assembly, soon after the adoption of the present Constitution by the people of the state, enacted such laws as were found necessary to carry this provision into effect. Ky. St. 1903, §§ 1486 to 1506, inclusive. But no attempt was made by that body to exercise the discretion conferred by the same section of the Constitution to require registration of voters, other than those in cities and towns having a population of 5,000 or more, until the passage of the amendatory act now complained of by appellee. This act requires registration of all qualified voters in all the cities and towns of the state, without regard to population. It amends section 1488 of the original statute by adding to the end of that section the following: “The officers of registration shall issue a certificate of registration to each voter registering at the time he registers, showing that he has registered, and the date of his registry, and no person who is required to register under the provisions of this act shall have the right to vote at any election held in this commonwealth until he shall have presented to the election officers his certificate of registration. Any person who has registered and whose certificate of registration has been lost or otherwise destroyed after the registration books, containing his registration, have been filed with the clerk of the county court, may, upon filing his affidavit before the county court clerk showing that fact, obtain a duplicate certificate of registration, and, upon filing such an affidavit before the county court clerk, it is hereby made the duty of the said clerk to issue said certificate, for which he may charge the applicant a fee of fifty cents, and said certificate shall entitle the person named therein to vote as if issued by the officers of registration and for the purpose of better enabling the officers of registration to carry out the provisions of this act, it is hereby made the duty of the county court clerk to furnish with the registration book, as in this act required, a sufficient number of printed certificates of registration to meet the requirements of this act and for which he shall be paid a reasonable compensation out of the county levy of the county.” It is insisted for appellee that the amendatory act is unconstitutional, because of the provision requiring the voter to produce to the election officers, when he presents himself to vote, a certificate of registration from the officers of registration, or in the event of its loss, a duplicate certificate of registration from the county clerk; and because of the further provision that he shall not be permitted to vote unless he produces such certificate, or duplicate certificate, to the election officers. It is being urged that these provisions constitute qualifications of the voter in addition to those contained in the Constitution; that they impose unreasonable regulations and burdens upon him, and tend to obstruct and destroy the right of suffrage.

We agree with counsel that the right of the Legislature to enact laws requiring registration existed before the adoption of the present Constitution, though the former Constitutions were silent on that subject; and that in passing upon a registration law enacted while the third Constitution was in force Judge Lewis, in Commonwealth v. McClelland, 83 Ky. 686, said: “It is only where such laws add to the qualifications prescribed by the Constitution, or impose unreasonable conditions to the exercise of the privilege of voting, that courts will interfere.” An examination of the subjoined authorities cited and relied upon by counsel for appellee will show that, though expressed in different language, they do not enlarge the ground for interference upon the part of the courts with legislative action of this character beyond the rule announced by Judge Lewis in the case supra. McCreary on Elections, § 126; Cooley's Constitutional Limitations (7th Ed.) § 907; City of Owensboro v. Hickman, etc., 90 Ky. 629, 14 S. W. 688, 10 L. R. A. 224. That the state Constitution may prescribe what qualifications shall be possessed by those upon whom it proposes to confer the elective franchise, none will deny. And it is equally true that that instrument may empower the Legislature to prescribe the mode of its exercise, in which case the authority of the latter body to enact such laws as may be necessary to the proper exercise of the power thus conferred cannot be questioned. “The judicial power of the government may so far regulate and control the legislative department as to set aside and declare void laws enacted by it, where such laws are in conflict with the Constitution. But this is upon the theory, not that the judicial department is superior to the legislative, but that the Constitution is superior to both, and that it is the province of the former to construe both the Constitution and the statutes, and determine whether there is a conflict. If there is, it is the Constitution that controls and limits the Legislature, and not the courts.” Works on Court and Jurisdiction, p. *284 191. It was said by Judge Cooley on this subject: “Nor can a court declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guarantied or protected, by the Constitution.” Cooley's Const. Lim. (7th Ed.) p. 232. “If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the mind of the judges to violate fundamental principles of republican government, unless it shall be found that these principles are placed beyond legislative encroachments by the Constitution.” Cooley's Const. Lim. (7th Ed.) p. 237. “Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.” Cooley's Const. Lim. (7th Ed.) p. 239; Edmonds v. Banbury, 28 Iowa, 272, 4 Am. Rep. 177; State, etc., v. Dillon, 32 Fla. 545, 14 South. 383, 22 L. R. A. 124. In Kinneen v. Wells, 144 Mass. 497, 11 N. E. 916, 59 Am. Rep. 105, it is said: “The qualifications of voters are fixed by state legislation. The requirements as to ownership, citizenship, sex, and residence, in connection with the right of voting, vary with the Constitutions or laws of the several states. However unwise, or unjust, or even tyrannical its regulations may be or seem to be in this record, the right of each state to define the qualifications of its voters is complete and perfect, except so far as it is controlled by the fifteenth article, amendments of the Constitution of the United States.”

As before remarked, section 147 of the Constitution declares that “the mode of registration shall be prescribed by the General Assembly.” The power thus delegated is comprehensive. By it the General Assembly is not only authorized to fix the plan or method of registration, but also to provide every detail thereof. Of the many registration laws of the states it will, we doubt not, be found that hardly any two of them are alike. In some of the states the voter, in registering, is required to make oath as to his name, age, residence, etc. In others it is necessary to enter in the registration book a description of his person in addition to his name, age, and place of residence. We are told by counsel that in one state the voter is required to sign the registration book, and also the election book, so that his identity may be established by a comparison of signatures. In several of the states the law, as in this state, requires the registration officers to issue a certificate to the voter when he registers, and this certificate he must preserve, and present to the election officers on election day as a prerequisite to voting. “Registration,” as applied to elections, is defined by the Century Dictionary as follows: “In the United States it is a system for the preventing of frauds in the exercise of suffrage by requiring voters to cause their names to be registered in books provided for the purpose in each election district, with appropriate particulars of residence, age, etc., to enable investigation to be made, and the right of the voter to cast the ballot to be challenged, if there be occasion. In Great Britain and Ireland the word ‘registration,’ as used with reference to elections, means the making up of a list of voters, which, after judicial revision, is the accredited record of the electors entitled to vote.” The word “registration,” as the dictionary will show, has other meanings than that given above. But, accepting the definition here given, it does not follow that the issuing of a certificate by the registration officers to the voter when he registers is not a part of the plan of registration, for the certificate is intended to furnish the voter as well as the election officers with evidence, in addition to that furnished by the registration book, that he is a registered voter, and therefore entitled to vote. The principal thing intended is that the certificate shall furnish better means of identifying the voter. His possession of the certificate, though conclusive as to the fact that the person named therein has been registered, will not be conclusive of his right to vote, for, if unknown to the election officers, they may require other proof of his identity. In other words, as argued by counsel, the registration certificate does not mean “vote bearer” unless “bearer” be known to the election officers to be the person named therein. It is equally true that the exercise of due care upon the part of the election officers in requiring identification of holders of registration certificates who are unknown to them would practically exclude from voting those who, through their loss by the owners, or other improper means, might get possession of them. The act is not, in our opinion, open to the criticism that it will tend to disfranchise voters otherwise qualified. The voter is put to no inconvenience in obtaining the registration certificate. It is given him when he registers, and the provision which allows him, in the event of its loss, to procure another of the county clerk by filing with that officer his affidavit proving such loss, relieves the voter of the disfranchisement that would otherwise necessarily result from its loss. There will doubtless be bribing of voters under the registration statute as amended by the act in question, as there was under the former law; for while corrupt voters may, under the present law, be induced to sell their certificates of registration, and thereby deprive themselves of the right to vote, under the former law the same result was reached by hiring them not to register, or to remain away from the election after registering, by which they were also prevented from voting. It is to be deplored that such evils should be associated *285 with the elective franchise, but we must look to the General Assembly for relief against them in the form of more stringent laws for their suppression.

It is also argued that the act imposes a burden upon the voter not contemplated by the Constitution, in that it compels him, in case of the loss of his certificate of registration, to incur expense to the amount of 50 cents in order to procure another of the county clerk. It is to be taken for granted that the loss of registration certificates will rarely occur, except through the fault or neglect of the owners, for which reason it were better to put upon the party in fault the duty of paying the clerk the nominal fee for the duplicate certificate than to compel that unoffending officer to perform the services required of him without compensation. Under the law the officers of registration or those of the election may, if unacquainted with a person desiring to register or vote, require proof of his identity, and would doubtless be authorized, at the instance of such person, to issue subpœnas for witnesses to be summoned to prove his identity. If so, or such person should find it necessary to hire a vehicle to convey to the place of registration or the voting booth witnesses to prove his identity, would it be contended that he would not be legally liable for the expense of summoning or conveying his witnesses to the place of giving their testimony; and if, under these circumstances the voter would be responsible for the expense incurred in proving his identity, would it be any greater hardship to require him to pay the clerk's fee for the certificate allowed to be issued by that officer?

It is further urged in criticism of the act that it is defective, because it allows the county clerk to issue registration certificates in lieu of those lost by voters, without other proof of such loss than their mere affidavits, and does not in express terms provide for the preservation of such affidavits. The first of these objections overlooks the fact that the registration books are on file in the county clerk's office from the time they are completed and returned by the registration officers. And when an application is made to the county clerk for a certificate in lieu of one claimed to be lost an examination of the registration books by the clerk would show whether or not the name of the applicant appeared therein, and, if not, it would clearly be the duty of the clerk to refuse him the certificate, notwithstanding his affidavit therefor. The second objection seems to be equally untenable. The requirement of the act is that affidavits showing the loss of registration certificates by the voters must be filed with the clerk. When filed, they become records in his office, and are to be preserved as such like other records that are required to be filed.

It is further urged that the act is defective in that it fails to provide penalties for violations of its provisions. It must be borne in mind that the act in question is intended to amend a statute in regard to registration, already in existence, which statute contains penalties that will apply to violations of the statute as amended. The fact that such penalties will not cover all offenses that may arise under the statute as amended does not make the amendatory act unconstitutional. The remedy lies in the enactment by the Legislature of a further amendment providing such additional penalties as may be needful.

Our attention has been called to the fact that the act fails to provide for the issual by the county clerk of original certificates of registration to persons who may be registered by him during the three days of supplemental registration provided for by sections 1498, 1499, Ky. St. 1903. This omission does not, in our opinion, affect the validity of the amendment. As the county clerk is the only officer authorized to register voters entitled to avail themselves of that right during the period fixed for supplemental registration, it will require no tortured construction of the statute as amended to say that he may issue to the voters admitted to registration by him certificates of registration, which shall as fully entitle them to vote at the election as if they had been issued by the officers intrusted with the duty of holding the first, or regular, registration.

We are not required to pass upon the policy of its enactment, but as to the constitutionality of the act we have no doubt. Wherefore the judgment of the lower court is reversed, and cause remanded, with directions to that court to sustain the demurrer to the petition, and for further proceedings consistent with this opinion.