Page v. Allen | Cases | Westlaw

**15 The purpose of these bills is to restrain, by injunction, the aldermen, councils, commissioners, controller and treasurer of the city of Philadelphia from carrying into execution any part of the act for the registration of electors, passed the 4th of April 1868. They assume that the entire law is unconstitutional and void. The general scheme of the act is this: The aldermen of the city are constituted a board for the appointment of three persons called canvassers, who shall not all belong to any one party, for each election division of the city. It is the duty of the canvassers to meet on the first Monday in September in each year, and make out a list of all the qualified electors known to them in their respective divisions. They then subscribe and make oath to these lists. The lists are to be printed and posted in at least ten places in each election division, together with a notice of the next meeting of the canvassers to revise, correct and complete the lists. That meeting is required to be on the twelfth, eleventh and tenth days next preceding the day of the general election, and is to continue from 10 o'clock A. M. until 7 o'clock P. M. of each day. At this meeting it shall be the duty of the canvassers to add to their lists the names of all who claim to be registered as voters, on proof by one witness, himself a qualified elector, of the residence of the claimant within the division, for a period not later than ten days before the day of the election; and on the oath of the claimant himself, of the time and place of his nativity, that he is a citizen, and has resided in the state one year, or in case of removal and return, six months previous to the day of the ensuing election; and also that he has not moved into the division for the purpose of voting therein, and *356 has not been registered as a voter elsewhere. Thus the law provides for an impartial commission to register the voters, for ample time and opportunity for each elector to be registered down to the last business hour of the last day, when a voter may move into a district and claim his vote. The list as first made must contain all the known voters, and being made on oath, of course will be taken from proper and legal sources of information, to wit, the last list of voters and former register, and must be finally revised, corrected and completed on proper evidence. The board of aldermen, men generally of standing, and elected from all parties, are not likely to appoint canvassers of bad character. The canvassers being reputable resident citizens, not confined to any one party, and acting under the sanction of an oath to the truth of their lists, are not likely to fail to make them correctly; and if from accidental causes a few legal voters should be omitted, it is more than compensated by the multitude of illegal voters who are excluded.

**16 What could be more fair than this mode of ascertaining the legal voters of the commonwealth? It denies to no one any right secured to him by the constitution, and secures to the true electors, first, their own right, and then the value of their ballots, by preventing neutralization by means of frauds. If the right of an elector be valuable, surely that system is most just which secures it from depreciation. The majority rule, when believed to be honestly administered, carries with it a moral power far beyond the sway of kings. But as a principle, it depends on the confidence begotten by it. The moment it is thought to be tainted with fraud, and the will of the true majority not faithfully expressed, distrust, dissension, and disturbance will follow. Confidence is lost, the essential principles of free government are endangered, evil passions inflamed, and peace destroyed. The remarks of the late John Sergeant, President of the Constitutional Reform Convention of 1837, in the debate on the 3d article, are felicitous and to the point: “We could not make a system so perfect that it should do no injustice to any one in the course of its operation; but he believed, under the present system, where one man properly entitled to vote was excluded, ten men voted who were not entitled to. Do you mean to have any limit at all? Do you intend to draw no line between your resident citizens, and vagrants and transient persons? If not, then let the judges and inspectors of elections take every vote that is offered, even without any name at all. Let every one go and vote, first in each of the fifteen wards of Philadelphia, and afterwards in Southwark and Spring Garden.” John Sergeant was one of Philadelphia's ablest and noblest sons. What, then, can be more honest, fair and just, than a system which ascertains who are the actual resident voters on the tenth day before the election? Is there any one who can *357 desire to benefit by the frauds to which the ballot-box is exposed by striking down this protection?

A registry law is constitutional. It has been well said that a constitution cannot execute itself. An outline, like the frame of a house, it is unfit for use until it is built and fitted up by the carpentry of the law. The constitution declares that in elections by the citizens, every white freeman (having the prescribed qualifications) shall enjoy the rights of an elector. But who are the citizens, and how and where shall they vote? When, in what manner, and by whom shall their citizenship, identity and qualifications be ascertained? All these are unwritten in the constitution, and are therefore left to legislation. Excepting the day of the general election, and the qualifications of the electors, the whole subject lies absolutely within the domain of legislative power. The entire machinery of elections, and the evidence of the identity and qualifications of electors, are now regulated by law. What is there to prevent the repeal of one system and the substitution of another? A chief duty under our system of government, is to ascertain who are the qualified electors. It is as clear a breach of the constitution to admit unauthorized persons to vote, as to exclude legal electors. A just registry of the electors is therefore constitutional and necessary, as a proper means of identifying those who offer their votes, and “calculated to promote peace, order, and celerity in the conduct of elections.” Being within the scope of undoubted legislative power, unless its provisions plainly and palpably (I adopt an approved form of expression) infringe the fundamental law, this court cannot arrest its execution. The nature of this proceeding demands a proper consideration of its true character. We are asked to place a judicial veto upon an entire system. No suitor is before us complaining of any provision in it affecting his own right of suffrage, but we are asked at the instance of private parties, to strangle the whole law, by restraining the board of aldermen from appointing the canvassers. This strikes down the entire system in all its parts. Who asks this to be done? Not the board of aldermen. They have met, and are ready to proceed to perform their duty, if we will permit them. But private citizens, as yet uninjured, and never likely to be, complain, and inform us that the aldermen are judicial officers, and the legislature ought not to impose this duty upon them.

**17 But what is this to them? If the aldermen are willing, what right has one to say nay? It is time enough for a court of equity to interpose, when the aldermen complain of an invasion of their rights. Is the act of a judicial officer, performed under the express authority of law, absolutely void, merely because it is not strictly judicial in its nature? This is the very point we must decide before we can enjoin against the act, at the instance of these private parties. To assert that the exercise of such powers is a *358 void act, would be to overturn the legislation and received practice of nearly a century, making void the most solemn acts of judicial officers. Not only all our own appointments of prison, penitentiary and building inspectors, and other officers committed to our selection are absolute nullities, and the acts of these persons invalid, but we, who ought to know this, have been guilty of periodical violations of the constitution we have sworn to support. There is also a vast field of appointment not alluded to by counsel, which, if contrary to the constitution, yet accompanied its birth, and has continued to this hour without the slightest suspicion of any want of authority--one on which the administration of civil affairs depends in a high degree. The Courts of Common Pleas and Quarter Sessions fill all vacancies in county and township offices, such as commissioners, auditors, surveyors, district attorneys, constables, supervisors, overseers of the poor, &c. For many years the associate judges constituted a part of the board for the revision of the taxes, and the judges of the judicial districts appointed the revenue commissioners. To these may be added what I might term the semi-judicial appointments of commissioners to lay out and divide townships, road viewers, &c.

Who has ever doubted the right of judges or justices, at least at their own option, to perform functions of this character, when expressly authorized by law? Are we then, by the strong hand of power, to overturn this long-settled practice, at the instance of mere private parties? Nothing, it seems to me, but the wildest notions of equity or law could suggest such a proceeding--notions having their parallel only in the argument that we ought to stop the aldermen from proceeding at all events, because, possibly, they might all decline to act. It is sufficient for us, however, that the aldermen have met, and have adjourned only out of respect for our process. If this injunction be supported, the next step we may expect will be, on the death or resignation of a district attorney, the disinterested citizens of our commonwealth, who are under recognisance or indictment to answer for supposed offences, will ask us to enjoin the judges, as judicial officers, from filling the vacancy. And to carry out the wholesome principle of preventing judicial officers from performing such duty, we may arrest the affairs of any unfortunate county or township, that may lose its officers by death, resignation or removal.

**18 The next objection to this law is even more unfounded. It is said the law requires the aldermen to appoint canvassers from the different political parties, and it is therefore a partisan measure. This is not so. They are to appoint “three reputable citizens for each election division of said city, all of whom shall not be of the same political party.” They are not to appoint all of one party, but where does the law say they shall appoint partisans at all? What good man who desires to see fair dealing and to preserve *359 the purity of the ballot-box, can object to this? What one of these complainants would applaud a speaker who would constitute a committee upon elections wholly of members of his own party? The objection is a perversion of the text of the law, and is disingenuous. The only qualifications of the canvassers are that they shall be reputable resident citizens, and they need not belong to any known party, but if they do they shall not all belong to the same party. This is fair and just to all.

If the board of aldermen be restrained upon such pretexts, what then? It is said the old law is revived, though expressly repealed. But does this follow? The repeal of a repealing law revives the former law, for this is the specific intent and necessary effect of the repeal of a repeal. But here we have a substitute and a repeal. When the substitute falls, not by legislative repeal, but a judicial decree, how is the old law revived? Certainly not by our act, for we exercise no legislative power. We say the substitute is invalid, but can we say the former law shall be reinstated? This requires legislative power.

Objections have been taken to the duties prescribed for the boards of canvassers. It is said the law confines the formation of the lists of voters at their first meeting to the personal knowledge of the canvassers. The law uses no such language. They are to make out “an alphabetical list of all such persons as they shall know to be qualified electors who have voted at any preceding general election therein.” How are they to know? By having been at the polls and watched the persons depositing their ballots? This is the only means of a personal knowledge. But this meaning is clearly absurd, and cannot be imputed to the legislature. They are to know who have voted as qualified electors at any preceding general election by the usual means of knowledge, to wit, the lists of voters. When the law gets into operation there will be no difficulty in knowing who are the qualified electors, so as to make out a very full and nearly complete list, as they will have the former register as well as the list of voters, in addition to their own knowledge of the persons in their divisions. One of the meanings given by lexicographers to the word “know” is, “““to be informed of:” Webster, Worcester. The objection is hypercritical and groundless.

The lists having been completed at the first meeting, as far as the means of knowledge of the canvassers would then admit of, they are required to meet again to revise and correct the list, by striking off the names of all persons ascertained to be deceased or removed, and by adding the names of others, who shall, “to their satisfaction, in conformity with the provisions of the act, prove themselves to be qualified electors of said election division.” We have now reached the most vehement objection. It is said the proof required of the person claiming to be added to the list *360 is impossible or else absurd, and imposes a disqualification contrary to the terms of the constitution. In order to state this question fairly and show the groundlessness of this complaint, I shall quote this part of the law: “Each person so claiming to be entitled to vote therein, shall produce at least one qualified voter of the said division as a witness of the residence of said claimant in the said division for the period of at least ten days next preceding the general election then next ensuing, which witness shall take and subscribe an affidavit to the facts stated by him, which affidavit shall define clearly the residence of the person so claiming to be a voter; and the person so claiming the right to be registered, shall also take and subscribe an affidavit stating where and when he was born, that he is a citizen of the Commonwealth of Pennsylvania and of the United States, and if a naturalized citizen, he shall also state when, where and by what court he was naturalized, and also present his certificate of naturalization for examination, unless he has been a voter in said election division for five years then next preceding the general election next ensuing; that he has resided in this Commonwealth one year, or if formerly a citizen therein and has removed therefrom, that he has resided therein six months next preceding the general election then next following; that he has not moved into the division for the purpose of voting therein, and that he has not been registered as a voter elsewhere; which said affidavits, both of the claimant and his witness, shall be preserved by the canvassers.”

**19 A fair-minded man, it seems to me, cannot fail to perceive the meaning of this provision, though awkwardly expressed. The claimant must prove his actual residence in the election division, and this residence must have existed at least ten days (the constitutional limit) before the election which is to ensue. It may be as much more as the party can prove, but it must have commenced at least ten days before the election. The canvassers are required to sit for three days in succession, the last being the tenth day before the election, and to remain in session until seven o'clock in the evening, the latest business hour, and the latest period when any one can be reasonably expected to remove into the district. The claimant has therefore until dusk of the tenth day before the election, to bring his witness, and prove his removal into the district. The purpose of the law in requiring the witness of the residence to state also, that it is for a period not less than ten days before the next election, was no doubt to prevent fraudulent proofs, by adjournment over within the ten days; or by equivocal or general expressions, which would leave the time when the residence commenced, uncertain. A fair survey of the section will show that residence is the subject of proof, the important fact to be clearly ascertained. The language is, “A witness of the residence of said claimant”--and the affidavit “shall define clearly *361 the residence of the person so claiming.” The period of residence plainly means the time at which it dates, or begins to run. The witness testifies to a residence of at least ten days previous to the election. The first meaning attributed to this clause by the plaintiffs, to wit, that the claimants shall prove a residence in the district of ten days previous to taking the oath, is in the teeth of the words themselves, which are, “For a period of at least ten days next preceding the general election then next ensuing.” How is it possible to say that a period of ten days next preceding the day of election means a period of ten days previous to taking the oath. The argument does not pretend to assert that the words read in this way, but that they mean this, because the witness cannot swear to a future period of time. Certainly he cannot; but for this very reason we should construe the law to mean what it evidently intends, to wit, that the residence, which he does swear to, actually existed at least ten days before the election. To assert that the legislature meant to require proof of a residence ten days before taking the oath, when the words do not say so, but do say next preceding the election, is to set up a meaning, it seems to me, and then to strike down the law for having it. No law can stand such a test, and I know no approved rule for thus interpreting statutes. The other meaning attributed to this clause, to wit, that the witness must swear to a residence of ten days between the time of taking his oath and the day of election, is plainly absurd, and therefore not to be adopted by a court, whose duty it is to interpret a law by the rules of common sense, and so as to effectuate the intention of the legislature. No man possessing ordinary intelligence could have penned this clause, with this absurd meaning. He must have known in the first place that the thing is impossible, the time not having expired, and that no witness, unless an idiot, would swear to a fact that had not yet transpired. He must have known, in the next place, that such a provision would nullify the law, and this could not have been his design. We cannot suppose the legislature meant a thing both impossible and suicidal, especially when a very sensible and obvious meaning is presented by the words themselves. The true meaning is made more evident by the subsequent provision in the 15th section, “That the only evidence that such person has resided in such election division for ten days preceding such election, shall be the fact that his name is found thereon”--to wit, the register. The fact of registration on the proof of a residence, pre-existing ten days before the election, is thus made conclusive evidence of continued residence in the mean time. Clearly this does not exact harder terms than the constitution requires. It substitutes registration (on the oath of a witness), made twelve, eleven, and not less than ten days before the election, for proof, on the day of election, of a continuous residence commencing ten days before. *362 It thus furnishes a legal presumption, that one having a bonâ fide residence in the district from the tenth to the twelfth day before the election, has continued therein until he offers his vote. This is a mere regulation of the evidence of residence, clearly within legislative power. If we follow the light of authority also, we cannot fail to interpret this law according to its true sense. Certainly we ought not to impute absurdity in order to defeat the statute. “When the intention of the legislature or the law is doubtful, and not clear, the judges ought to interpret the law to be what is most consonant to equity, and least inconvenient:” 1 Dallas 188, citing Vaugh. 28, 285. “As to the construction of statutes, it is certain they are not always to be construed according to the letter:” 3 Binn. 356. “Or,” has been construed to mean “and:” 8 W. & S. 463. “Void,” has been held to mean ““voidable:” 2 W. & S. 280. And in this case Justice Sergeant said, “But for us to hold a law unconstitutional, it must be a plain violation of some provision contained in the constitution.” And thus said Justice Strong, in Huber v. Riley, 3 P. F. Smith 315, “It is the duty of every court to construe a statute, if possible, so, ut res magis valeat quam pereat, that construction of this act must be adopted, which is in harmony with the acknowledged powers of Congress.” The whole difficulty in reading the act before us, is removed by substituting the preposition “at” for “for,” reading the clause “at the period of at least ten days next preceding the general election,” instead of ‘for the period,” &c. Nothing is more common than the misuse of prepositions and conjunctions, and, indeed, of adverbs, in all kinds of writings, statutes as well as contracts and wills. These parts of speech are the mere links of thought, and we are in the daily habit of changing such minor expressions into their correct forms, ut res magis valeat quam pereat.

**20 A kindred criticism is applied by the objectors to that portion of the affidavit of the claimant reading as follows: “That he has resided in this Commonwealth one year,” or, in case of removal and return, “that he has resided therein six months next preceding the general election then next following.” It is said this means the claimant must swear that he will reside therein until the day of the election, in order to complete the one year or six months; and this he may not safely do. If it means that he has resided a year or six months before the date of the oath, it would require a longer residence than the constitution prescribes. Yet the language expresses no such thought, and certainly does not mean it. It merely says, “he has resided one year or six months next preceding the general election,” and means simply, that the period of residence runs back to a period of one year or six months before the election. The day of election is stated only for the purpose of computing the time backward, not forward. The registration on the tenth or twelfth day before the election, stands, *363 as before stated, for the evidence of continued residence down to the election. Indeed, I do not see how it is possible to miss the meaning of this provision.

The next objection scarcely deserves notice. On the completion of the lists of electors, a copy is to be handed to the assessors, “who thereupon shall immediately assess a tax according to law upon every person whose name is contained in said list, and deliver the same to the city commissioners.” It is thought this will subject to double taxation. This is not correct. This act provides neither for what taxes shall be assessed nor how they shall be collected, leaving the kind of tax, the appeal, the collection and all matters relating to it, to be regulated by the general laws. The assessor is plainly remitted to the general law, to govern himself accordingly. The list is handed to him in the last of September or first of October, after the taxes of the current year have been assessed and gone into collection. He is the same assessor who is to assess the next year's tax. The assessment is plainly, therefore, a part of the assessment of the same fall for the next year's tax, and the evident purpose of this act is to secure the proper assessment of each registered voter every fall. It is for this reason every registered person is to be assessed, and the list to be returned to the commissioners, who carry it into the approaching assessment, and must take care that no one is doubly assessed; and if he be, he has his remedy by appeal, at the usual time and place.

It is also objected that the list is handed over to the assessors too late to make the assessment ten days before the election. But as the purpose, as already stated, was to furnish a system for taxing all the electors every year, it is evident this provision was not intended to supply the means of assessment for untaxed electors in time for the ensuing election, and therefore does not supply the old law which exists for this purpose. Those, therefore, who have not paid a tax within two years, can still avail themselves of the old law, and procure themselves to be assessed ten days before the election, and thus entitle themselves to vote as heretofore. It is also to be borne in mind that the assessment is no part of the registry, and that one whose name is registered can therefore vote on any payment of taxes within the constitutional provision.

**21 But were all these objections to the proceedings before the canvassers to be conceded, what right have we, at the instance of these plaintiffs, to restrain the board of aldermen? The injunction should issue against the canvassers only, to restrain them from executing that portion of the law we may deem to be invalid. Clearly they have a right to make out lists, and erase and correct them by proper legal evidence. If they undertake to make witnesses swear to impossibilities, or the party to swear to a future *364 residence, or to do any illegal act, the remedy belongs to the injured party, and lies against the canvassers, and not against the aldermen. The appointment of the canvassers is clearly a valid act, and if disputable, certainly no one but the aldermen themselves can complain of the duty exacted. This is a wholesale proceeding against everybody--aldermen, councils, and city officers--as if the legislature had no power to regulate the subject of elections at all.

What right have we as a court to set ourselves against the whole system, a matter within the undoubted power of the legislature? We are not a counsel of censors to revise legislation, but our whole duty is performed when we redress the wrong of a party injured by some invalid portion of the law. The system is charged with expensiveness, but the remedy for this lies with the people themselves and their representatives. The question of a registration is not a new thing. It was thoroughly investigated, and decided to be a valid exercise of legislative power, in Capen v. Foster, 12 Pickering 485. The opinion of Chief Justice Shaw is one of marked ability, and I cannot do better than to transcribe the following paragraphs:--

“The constitution, by carefully prescribing the qualifications of voters, necessarily requires that an examination of the claims of persons to vote on the ground of possessing these qualifications, must at some time be had by those who are to decide on them. The time and labor necessary to complete their investigations, must increase in proportion to the increased number of voters, and, indeed, in a still greater ratio in populous commercial and manufacturing towns, in which the inhabitants are frequently changing, and where of necessity many of the qualified voters are strangers to the selectmen.

If, then, the constitution has made no provision in regard to the time, place and manner in which such examination shall be had, and yet such examination is necessarily incident to the enjoyment and exercise of the right of voting, it constitutes one of those subjects respecting the mode of exercising the right, in relation to which it is competent to the legislature to make suitable and reasonable regulations, not calculated to defeat or impair the right of voting, but rather to facilitate and secure the exercise of that right.”

“And the court is of opinion that the provision in the general law regulating elections, and that in the act incorporating the city, which requires that the qualifications of voters shall be previously offered and proved in order to entitle them to vote, that their names shall be entered upon an alphabetical list or register of voters, is highly beneficial and useful, calculated to promote peace, order and celerity in the conduct of elections, and as such to facilitate and secure this most precious right, to those who *365 are by the constitution entitled to enjoy it; that it cannot be justly regarded as adding a new qualification to those prescribed by the constitution, but as a reasonable and convenient regulation of the mode of exercising the right of voting, which it was competent to the legislature to make; and therefore that these legal enactments, not being repugnant to the constitution, are valid and binding laws, to which both voters and presiding officers at elections are authorized and bound to conform.

**22 Nothing but the carelessness or neglect of the voter himself, or some accident not attributable to the law or the officers who are to execute it, can deprive him of the power of proving his right and exercising his privilege, and against these it would be difficult, either by legal or constitutional provisions, entirely to guard.”

I therefore, for all these reasons, dissent from the judgment just entered by the court

A majority of the court think that a registry law, properly framed, is constitutional, and well calculated to prevent frauds at election. I agree with my brother Agnew, that the Registry Act is constitutional, and could be carried into effective operation.

I was counsel of Mr. Kneass in 1851, and of Mr. Mann in 1856, and from what I saw in those contested election cases, I was fully convinced that the election laws were utterly inefficient in preventing fraud, and subsequent experience has confirmed me in my opinion. In some districts of the city--“plague spots”-- fraudulent voting is the rule, and honest voting the exception.

I am fully convinced that nothing but a registry law, honestly and firmly administered, can cure an evil which strikes at the root of our republican institutions.