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In re Opinion of Justices
Supreme Court of Errors of Connecticut.December 24, 186230 Conn. 591 (Approx. 7 pages)
In re Opinion of Justices
Supreme Court of Errors of Connecticut.December 24, 186230 Conn. 591 (Approx. 7 pages)
30 Conn. 591
Supreme Court of Errors of Connecticut.
OPINION of the judges of the supreme court,
Dec. 24, 1862
**1 *591 In the matter of the constitutionality of the Act of the General Assembly, approved Dec. 24th, 1862, entitled “An Act in addition to an Act entitled an Act relating to Electors and Elections,” providing a mode of taking the votes in the election of state and other officers, of persons absent from the state in the military service of the United States.
The act of December 24, 1862, which provides for taking, at places out of the state, the votes of persons in the military service of the United States, in the election of state and other officers, is, in respect to the election of state officers and members of the General Assembly, unconstitutional.*
Opinion
Butler, J.
**2 Having been convened by the Governor, pursuant to the direction of the General Assembly, to advise him respecting the constitutionality of the act in question, we have given it that careful consideration which a proper deference and respect for the legislature and the obvious equity of the law on the one hand, and the importance of adhering, inflexibly, to the fundamental and essential principles of constitutional law on the other, required of us. On such consideration we have unanimously certified to the Governor our *592 opinion, that, in respect to the election of governor, lieutenant governor, treasurer, secretary, comptroller, and members of the General Assembly, the act is unconstitutional. It remains, *593 in accordance with the settled policy of the state and the presumed expectation of the Assembly, that we furnish to the reporter of the decisions of this court our reasons for that opinion.
The constitution of the state, framed by a convention elected for that purpose and adopted by the people, embodies their supreme original will, in respect to the organization and perpetuation of a state government; the division and distribution of its powers; the officers by whom those powers are to be exercised; and the limitations necessary to restrain the action of each and all for the preservation of the rights, liberties and privileges of all; and is therefore the supreme and paramount law, to which the legislative, as well as every other branch of the goverment, and every officer in the performance of his duties, must conform. Whatever that supreme original will prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that *594 which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.
The constitution establishes an elective government, and under it there must of necessity be a fixed time, place and manner of holding elections. If these are clearly and sufficiently fixed and prescribed by the constitution, and nothing is expressly delegated or by implication left to the legislature, that body can not interfere to alter, extend or suspend them, or either of them, in the slightest particular. If they are not thus fixed and prescribed by the constitution, it is by implication incident to the general legislative power to do it, so that the government may be perpetuated and sustained. Pratt v. Allen, 13 Conn., 119.
Our simple enquiry therefore is, whether the constitution has so fully and clearly prescribed the time, place and manner of holding elections, or either of them, as to leave, by implication, no power in the General Assembly to prescribe them, or either of them, in the way and to the extent they have attempted to do in the act in question.
**3 In relation to the time, place and manner of holding elections, the constitutions of the several states differ. In some of them all three are prescribed with that particularity which forbids all action by the legislature. In others neither are prescribed, but the qualification required of the voters is fixed, and the power to regulate the time, place and manner committed to the legislature; and in such states, the reception of votes out of the state may be constitutionally authorized. In others, one or more of them is prescribed, and the rest left for legislative provision. Thus in Pennsylvania, the place only was prescribed by the constitution; but that was sufficient to render an act of the legislature authorizing the reception of soldiers' votes out of the state invalid. It was provided in the constitution of that state that the legislature should divide the state into “election districts,” and that no person should be entitled to vote in any district who had not resided, during the ten days next preceding the time when he should offer to vote, in the district where the vote should be offered. Their supreme court held that under such a provision “““election *595 districts” must be territorial subdivisions of the state, and could not be formed or extended out of it; that an “offer to vote” must be personally made, in the “election district” where the voter had a right to make the offer; and that therefore the legislature could not authorize a vote to be offered or received in any place out of the state.
It was the intention of the men who framed the constitution of this state, and of the people who adopted it, to place every thing pertaining to the election of state officers and members of the General Assembly beyond the reach of subsequent legislatures. The political contest which preceded it was one of the most bitter ever known. Mr. Hollister, in his History of Connecticut, vol. 2, page 512, says of it: “To recite the details of the party strifes of that day, would be to dig up from the graves that ought for ever to hide them, some of the most bitter and malignant pamphlets and newspaper articles that ever disgraced the politics of the northern states. The whole ground seemed to be covered with pamphleteers, libelers, scurrilous facts, and all the other drift wood that the swollen currents of popular prejudice and bad passions can dislodge from the ooze where they lie half hidden or remote from view in quiet times.” Among the causes of complaint he further says: “Those bearing on the elective franchise were looked upon as especially tyrannical. The ‘stand up law,’ as it was denominated, which required voters to stand up at elections, and expose themselves and their political sentiments to the scrutiny of the public, was complained of as subjecting the voter to the cruel ordeal of being gazed at by his creditors.”
It was from such a state of things that the constitution emerged; and we can not shut our eyes to the fact which history, and the provisions and repetitions of the instrument teach us, that it was one of the leading objects of the convention and the people, to direct explicitly and exclusively, and in every essential detail, when, where, and how the elective franchise should be exercised.
**4 1. Thus, in the first place, they directed that the time of holding the annual election should be the first Monday of April in each year. During the high and close party times, *596 from 1830 to 1836, it not unfrequently happened that parties in a particular town were so balanced or divided, that the electors balloted all day, and until twelve o'clock at night, without electing representatives; and as the constitution prescribed that they should be elected before the other officers could be voted for, the representation and the votes for state officers in such towns were lost. No one supposed the General Assembly could remedy the evil, and in 1836 an amendment was adopted authorizing the legislature to provide by law for an adjournment of the electors' meeting in such towns, and in such case, to a subsequent day. And so the constitution now stands as to time, and in that respect no change was attempted by the law in question.
2. The constitution is equally explicit in its direction as to place, and that place is in an “electors' meeting,” composed of the electors in the respective towns qualified to vote in the town, duly warned, convened, organized and held, for that purpose.
The constitution is not so much a creative, as a defining and restraining instrument. Under the charter of Charles II., which was the fundamental law from the time it was procured till 1818, the government was a corporation, of which every “freeman” was a member, and the General Court or Assembly had power “to erect and make judicatories,” “to make and ordain all manner of wholesome and reasonable laws,” &c., “to name and style all sorts of officers, and distinguish and set forth their several duties,” &c., “to dispose and order the election of annual officers,” and “for the directing, ruling, and disposing of all other matters and things.” The General Court or Assembly had, therefore, supreme legislative and judicial power, and substantially supreme control of the executive power; and nearly every thing was subject to the will or caprice of a legislative majority. The introduction of other religious sects and denominations, and of national party questions and interests after the organization of the national government, both variant from the feelings and opinions of the majority, producing the state of things described by Mr. Hollister, led the people, gradually, to see the necessity for a bill *597 of rights to restrain the power of the General Assembly; a separation of the judicial from the legislative power; and such ordering of the time, place and manner of conducting elections as would place them forever beyond the control of the General Assembly; and to effect these and other purposes, and among them to provide for full religious liberty, was their purpose in establishing the constitution. It was not their desire or intention to effect a general or extensive alteration of their political system, but to effect a separation and distribution of the powers of government, and impose necessary restraints upon the General Assembly and the action of a legislative majority. Hence they say in the preamble, that their purpose was “more effectually to define, secure, and perpetuate the liberties, rights and privileges which they derived from their ancestors.”
**5 The constitution does not in any of its provisions speak of an election, or the election, but, every where and invariably, of the “meetings of the electors ” for the purpose of electing the respective officers.
The convention found the “freemen's meeting” a distinct and peculiar feature in the political system of the state, as old as its history. It originated in 1639, in the compact or constitution formed by the towns of Hartford, Windsor and Wethersfield, in a provision for the warning of a “freeman's meeting” to elect deputies (representatives) from each town to the General Court (Assembly). From that year, and after the merger of the New Haven colony under the charter of Charles, there has never been an election, by the people, of representatives or state officers, in any other manner or place. The convention adopted this feature, as they did in the main the other institutions of the state, changing its name to “electors meeting.” And then, in pursuance of one of their leading purposes, they directed, in as clear and explicit language as they could command, and specifically, and with repetition as to each of the officers, that they should be successively voted for and chosen “at,” or “in,” that electors' meeting. There the constitution directs that the votes of the electors shall be offered and received; that is the only place contemplated or in any way *598 alluded to in that instrument where they may be offered and received; and there only, we are satisfied, they must be offered and received, or they can have no constitutional operation in the election for which they are cast. A few extracts will demonstrate this.
In the first place, we find in Art. 6, Sec. 9, the following general provision:
“The meetings of the electors for the election of the several state officers, by law annually to be elected, and members of the General Assembly of this state, shall be holden on the first Monday of April in each year.”
Next we have a general provision (Art. 6, Sec. 6,) authorizing the legislature to make laws “prescribing the manner of regulating and conducting (not the election, or the voting, but) the mèetings of the electors, and prohibiting, under adequate penalties, all undue influence therein.”
Then we find several provisions and amendments, specific as to each of the officers, to carry out the same purpose. Thus, in Art. 3, Sec. 5, it is provided that, “at the meetings of the electors, held in the several towns in this state, in April annually, after the election of representatives, the electors present shall be called upon to bring in their written ballots for senators,” &c.; and the same language is used in the amendment of 1828.
Again: “At the meetings of the electors in the respective towns, &c., after the election of senators, the presiding officers shall call upon the electors, &c., to bring in their ballots, &c., for governor,” &c. Art. 4, Sec. 2.
**6 “At the annual meetings of the electors, &c., there shall be chosen, & c., a lieutenant governor, &c. Art. 4, Sec. 3.
A treasurer shall be annually chosen by the electors, at their meeting in April,” &c. Art. 4, Sec. 17.
“A secretary shall be chosen next after the treasurer, and in the same manner.” Art. 4, Sec. 18.
“A comptroller of public accounts shall be annually chosen by the electors, in their meeting in April,” &c. Amendment of 1836.
*599 “Each elector present at such meeting, &c., may thereupon bring in his ballot,” &c. Amendment of 1828.
“The presiding officers shall receive the votes of the electors, and count and declare them in open meeting,” &c. Art. 3, Sec. 5.
Other citations might be added, but these are sufficient. The intention of the convention and people that every vote cast for members of the General Assembly, governor, lieutenant, treasurer, secretary and comptroller, should be brought in by the elector in person, in an organized electors' meeting, in the presence of the electors, and be there received by a presiding officer, is so frequently and explicitly expressed that we can not entertain a doubt respecting it.
But the act in question authorizes the electors who may be absent in the army to offer their votes on the day of election to the three senior officers of the regiment or detachment, &c., outside of any electors' meeting in a town of this state; in an ambulatory camp, wherever the corps may be on that day, or however engaged; and whether those officers are electors or not, or citizens or not; and the votes to be counted, and lists made and certified by the commander of the corps, whether an elector or not, or a citizen or not; regardless of the right of every elector of the town to be present to witness the voting and challenge the votes; and regardless of the constitutional requirement that the votes shall be counted and declared in the presence of the electors, that they may judge of the fairness and purity of the election; and without any provision for lodging a list with the town clerk for their subsequent examination. This we think is a clear departure as to the place of receiving the votes, and as to all the constitutional safeguards incident to the place; and in derogation of the constitutional right of every elector to observe, and challenge if he see cause, any vote which may be cast in the electors' meeting of the town; and to see that the votes are correctly counted, and hear them declared, that he may know, by his tally list or otherwise, that an honest election has been had. The act is not an exercise of any power claimed to be expressly delegated, or an implied power to supply needed and omitted details *600 in aid of a general provision of the constitution, and in harmony with it; but it authorizes an election to be holden at another and different place than that which the people, by their supreme will, have specifically and fully prescribed; by military instead of civil officers; and in derogation of the constitutional safeguards incident to the place prescribed in the paramount law. It is therefore manifestly repugnant to a plain and imperative provision of the constitution, unauthorized and nugatory.
**7 The General Assembly have heretofore ventured to divide some of the towns into voting districts, under the amendment of 1836; but they have been very cautious to provide for a principal “electors' meeting” at the usual place where such meetings had been holden, and the organization of branch ““electors' meetings” in each voting district, and a return of all the votes to the presiding officer of the principal meeting, to be by him declared in presence of the electors, and to be certified by him to the secretary of the state and the town clerk. And such caution was necessary to the constitutionality of the law. But no one, we presume, has heretofore supposed, that a man who was detained by sickness at his home, or the many who are every year detained by business in other states, or in congress, or the departments at Washington, or in coasting vessels, or in the navy yards or navy, or otherwise absent from home, could, by a mere provision of law, be favored with a special opportunity to vote. It is said, and truly, that this is an extraordinary exigency; but the men who made the constitution had just passed through a war which drew many men from the state, and the exigency of a future war may well have been contemplated as possible; and the mere magnitude of the exigency and of its consequent equities do not alter its character. But however that may be, the people saw fit, in their determined intention that all elections should be regulated by constitutional provisions, unalterable by the General Assembly, to prescribe in the clearest manner, when, where, and how the elective franchise should be exercised, and these provisions must control the General Assembly in all exigencies, *601 until changed by the supreme will of the people, expressed in a new or amended constitutiou.
It is not only obvious from this submission for our opinion, but apparent upon the face of the law, that the General Assembly had serious doubts in relation to their power to disregard the plain and reiterated mandates of the constitution, in respect to the place where votes should be offered and received. This is particularly evident from a provision in the 8th section, that the votes cast by the soldiers in camp should “be considered, taken and held to have been given by them in the respective towns of which they are residents.” But that provision, if valid, would not effect the purpose intended. It is not enough that the votes be, in fact or constructively, cast in the town where the voters reside; they must also be cast in an electors' meeting in such town, and votes received under the law on the day of election, by a military commandant, if then encamped in the town where the voters resided, could not be constitutionally operative in that election.
Doubtless the General Assembly may say, in any language they choose, that a statute shall be “considered, held and taken” to embrace some subject-matter or thing, or construed to be in accordance with, or a compliance with, some other statute, &c.; and, if the place of voting could have been fixed by statute, the provision in question would be valid. But, applied to the constitution, that provision of the law is an anomaly, and, in effect, an effort by an inferior to change, extend and indirectly control a clear, full, exhaustive mandate of its superior in a material particular, even in respect to its own organization, and inconsistent with the fundamental principles of constitutional law.
**8 If the General Assembly can thus add to, alter and control one constitutional provision respecting elections, there are no others beyond their reach. They may direct votes to be taken at any time, and say that they shall be considered, held and taken to have been cast on the first Monday of April. They may authorize minors to vote, and say that their votes shall be considered, taken, and held to be the votes ef electors of full age; or colored men, and say that their votes shall be considered, *602 taken, and held to be the votes of white men and electors; and so may authorize the taking and counting of the votes of women and aliens. Nor would there remain any other matter of constitutional provision or purpose, which might not be reached at any time by a temporary and fluctuating legislative majority, and by the same legislative alchemy of changing things, constructively, into what they are not in fact, be practically controlled or annulled. Indeed, the same process which could turn votes taken in a camp to votes taken in an electors' meeting, might turn those taken in fact in the electors' meeting into the votes of women, or aliens, or minors, or colored men, and exclude them for that reason from the canvass; and so on, till the constitution and constitutional law become a mockery.
Nor can it with truth or safety be said, that although the constitution prescribes a certain place where votes may be cast, it does not prohibit their being cast in any other place. Neither in constitutions, nor statutes, nor contracts, nor wills, nor in any oral directions of a superior to an inferior–as a master to a servant, or a parent to a child–do men deem it necessary to accompany an express and full direction to do a particular thing in a particular way, by an express direction not to do it in any other. Officers, civil and military, citizens, servants, and children, all understand that every such direction of a superior carries with it an implied prohibition against doing the thing prescribed in any other way.
3. And the mandates of the constitution are equally explicit as to the manner of proceeding. That respecting the choice of governor is in the following words:
“At the meetings of the electors in the respective towns, in the month of April in each year, immediately after the election of senators, the presiding officers shall call upon the electors to bring in their ballots for him whom they would elect to be governor, with his name fairly written. When such ballots shall have been received and counted in the presence of the electors, duplicate lists of the persons voted for and of the number of votes given for each shall be made and certified by the presiding officer; one of which list shall be deposited *603 in the office of the town clerk, within three days, and the other transmitted to the secretary, or to the sheriff of the county in which such election shall have been held. The sheriff receiving such votes shall deliver, or cause them to be delivered, to the secretary, within fifteen days next after said election. The votes so returned shall be counted by the treasurer, secretary and comptroller within the month of April. A fair list of the persons and number of votes given for each, together with the returns of the presiding officers, shall be, by the treasurer, secretary and comptroller, made and laid before the General Assembly, then next to be holden, on the first day of the session thereof; and said Assembly shall, after an examination of the same, declare the person whom they shall find to be legally chosen, and give him notice accordingly.” And this provision is expressly made applicable to the other state officers to be chosen by the electors under the original provisions of the constitution.
**9 To remedy an inconvenience arising from the use of written ballots only, the necessity of voting for the officers successsively, and from a desire to have a registry law, an amendment was adopted in 1836, which was as follows:
“The electors in the respective towns on the first Monday of April in each year, may vote for governor, lieutenant governor, treasurer, secretary, comptroller, senators, and representatives in the General Assembly, successively, or for any number of said officers at the same time. And the General Assembly shall have power to enact laws regulating and prescribing the order and manner of voting for said officers;” providing, however, that the votes should be by ballot, written or printed. This amendment is carefully confined to the order and manner of voting, and confers no power to change the mandate in any respect except as to the order and manner in which the votes may be given and received.
In this mandate, thus amended, all the essential details of time, place, and manner of proceedings, are fixed, viz:
1. The time–the first Monday in April.
2. The place–the meetings of the electors.
3. The voting–to be at the call of the presiding officers, in *604 the presence of the electors, and in such order and manner as the General Assembly should direct.
4. The votes to be received, counted and declared in the presence of the electors.
5. Lists of the votes so given, received, counted and declared, to be made and certified by the presiding officers of the electors' meeting.
6. One of those lists to be returned to the secretary of the state, the other to the town clerk.
7. The lists so certified and returned to the secretary to be canvassed by the treasurer, secretary and comptroller, and aggregate lists made therefrom.
8. And the lists so returned, with those made by the canvassers, to be presented to the General Assembly on the first day of its session.
9. The General Assembly to examine the lists of the presiding officers and the canvassers, and declare the choice evidenced by them, and notify the several persons elected.
We are not able to see how the mandate could be more explicit, complete, or constitutionally exclusive, as to the manner of proceeding.
But the act in question authorized other lists, of other votes, taken by other, and military, and perhaps alien officers, at other places, to be certified by still another officer, and directs the canvassers to count and include such other lists, so that the next General Assembly might declare such persons as should be elected by all the lists, to be elected. We are entirely satisfied that the act, in this respect also, is repugnant to the constitution, and invalid, and that such other lists could not be constitutionally regarded by the General Assembly in determining the result of the election.
In this opinion the other judged concurred.
All Citations
30 Conn. 591,Footnotes
The 1st, 2d, 3d, 4th and 5th sections of the act in question provide for the mode of registering the names of the electors in the military service. The act then proceeds as follows:–
Sec. 6. The secretary of state shall classify and arrange the lists returned to him as aforesaid, and shall make therefrom separate lists of the electors belonging to each regiment, battalion, squadron and battery from this state, which shall then be in the service of the United States, and shall, on or before the twenty-fourth day of February, A.D., 1863, transmit by mail to the commanding officer of each regiment, battalion, squadron and battery as aforesaid, a list of the electors belonging thereto, which said list shall specify the name, residence and rank of each elector, and the company to which he belongs, if any, and shall also designate the town, county, congressional district, senatorial district, and probate district, for officers of which each of said electors is entitled to vote.
Sec. 7. In case any regiment in the field shall be divided, and stationed in different places or localities, the commanding officer of such regiments shall, upon receiving from the secretary of state the list of the electors in the regiment under his command, forthwith transmit to the officer having for the time being a portion or detachment of such regiment under his command, a list of the electors belonging to said detachment or portion of said regiment, which list shall be a transcript of said list furnished by the secretary of state, so far as relates to the electors to be embraced therein, and shall be certified by the commanding officer of said regiment.
Sec. 8. On the first Monday of April, A. D., 1863, ballot boxes, or other suitable receptacles for votes, shall be opened, and votes received from the electors whose names are upon said lists, at each place where a regiment, detachment of a regiment, a battalion, squadron or battery of Connecticut soldiers in the service of the United States, may be on that day, at which time and place the electors, whose names are upon said list, belonging to such regiment, detachment, battalion, squadron or battery, shall be entitled to vote for all officers, for which, by reason of their residence in the several towns in this state, they are authorized to vote, as fully as they would be entitled to vote at the electors' meetings of the several towns in which they reside. And the votes so given by such electors, at such time and place, shall be considered, taken and held to have been given by them in the respective towns of which they are residents. Such ballot boxes or other receptacles for votes shall be opened, and said votes received, under the supervision and charge of the three highest or senior officers in command of such regiment, detachment, battalion, squadron and battery; in one of which shall be deposited, by said electors, ballots for state officers, members of congress, senators, sheriffs, and judges of probate, which ballots shall have the name and office of the persons voted for, for governor, lieutenant-governor, treasurer, secretary, comptroller, member of congress, sheriff, senator, and judge of probate, fairly written or printed on one piece of paper, and in the other shall be deposited the ballots for representatives in the general assembly, each ballot to state the town which the person or persons voted for as representatives are to represent. The name of each elector voting as aforesaid shall be checked at the time of voting by one of the officers having charge of the boxes as aforesaid, upon the lists furnished as aforesaid, and the officers receiving said votes shall exercise due care and diligence to prevent any soldier voting by mistake for any officer except such as he is entitled to vote for; but no officer shall open or examine any ballot before the same shall be deposited in the ballot box. All ballots for members of congress, sheriffs, senators, and judges of probate shall state upon such ballot the number of the congressional or senatorial district, and the name of the county or probate district, for which respectively said officers are voted for. Said boxes shall be opened, if practicable, at nine o'clock in the morning of said day, or if not then, at such hour in said day as may be agreed upon by the officer whose duty it is to open the same, and shall remain open a sufficient length of time to enable the electors belonging to said regiment, detachment, battalion, squadron or battery, to vote; and one hour's notice shall be publicly given by the commanding officer before closing said boxes; and when said boxes shall have been closed, the votes shall be, as soon as possible thereafter, counted by the officers having charge of said ballot boxes, or persons by them appointed.
Sec. 9. When said votes shall have been counted, all the ballots cast, together with the voting list checked as aforesaid, shall be sealed up by the commanding officer, and be by him forthwith transmitted by mail to the secretary of state at Hartford; and said commanding officer shall also make out and certify duplicate returns of the votes given, according to the forms hereinafter prescribed, and seal up, and forthwith transmit the same, by separate mails, to the secretary of state at Hartford.
The remaining sections (10th to 15th) provide for the mode in which returns of the votes shall be made to the secretary of the state, and for the canvassing of the same, and for some other formal matters, and are not important to the question considered by the court.
A supplemental act provided that the governor should take the opinion of the judges of the supreme court as to the constitutionality of the act, and in case it should be held unconstitutional, should make proclamation of the fact; upon which all persons should be released from the duties imposed by the act.
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