Commonwealth v. McClelland

83 Ky. 686, 1886 Ky. LEXIS 26

• Court: Court of Appeals of Kentucky
• Decided: March 11, 1886
• Status: Published

Opinion

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

Appellee was indicted for the crime of perjury, charged to have been committed by him in willfully and corruptly making a false statement on oath administered under an act of the General Assembly, entitled “An act to provide for registration of voters In the city of Louisville,” approved April 23, 1884. But a demurrer to the indictment having been sustained, the Commonwealth prosecutes this appeal, which requires a decision as to the constitutionality ■of the act as well as the sufficiency of the indictment under it.

In considering the first question it is necessary to inquire—

1. Whether the General Assembly has the power ■to enact any law requiring qualified voters to be registered before the day of election, as a condition of the exercise of their right of suffrage. And if so,

2. Whether such law is valid when made local and not general in its operation.

3. Whether the whole or any part of the act in question is invalid.

The right to vote is conferred and the qualifications of voters subject to the modification made by .article 15 of the Constitution of the United States, .are prescribed by section 8, article 2, of the State •Constitution, which is as follows:

“Every free white male citizen of the age of twenty-one years, who has resided in the State two years, or in the county, town or city in which he offers to vote one year next preceding the election, shall be a voter; but such voter shall have been for .sixty days next preceding the election a resident of the precinct in which he offers to vote, and he shall vote in said precinct and not elsewhere.”

The Constitution requires the General Assembly to divide or cause to be divided into convenient election precincts every county, and also each city or town that- has the number of qualified voters equal, to the fixed ratio of representation; it prescribes, the day and between what hours of the day all elections by the people shall be held; and requires that in all such elections the votes shall be personally and publicly given viva wee, except dumb persons-may vote by ballot. But in respect to the officers-authorized to hold elections, and to determine the-result of elections by the people, and the rules by which they are to be' governed in the' discharge of such duties; and in respect to the officers by whom, the mode, and the time, whether before or on the-day of election, those entitled to vote shall be ascertained and separated from those not so entitled, the Constitution is silent.

It is thus apparent that the actual exercise of the right to vote by those possessing the constitutional qualifications is made to depend upon needful, rules and regulations which the General Assembly may, from time to time, provide by law, and which. section 4, article 8 of the Constitution makes its-duty to provide. That section is as follows:

“Laws shall be made to exclude from office and' from suffrage those who shall thereafter be convicted of bribery, perjury, or other crimes or high misdemeanors. The privilege of free suffrage shall be-supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practices.”

Free suffrage must, however, be understood as a privilege restricted to persons possessing the qualifications prescribed by section 8, article 2, modified in the manner mentioned, and who have not, for the causes stated in the section just quoted, forfeited it. Consequently, to permit persons not having such qualifications to vote at elections by the people, thereby neutralizing or counteracting the influence of those who have, would not only corrupt but impair the value, and tend to entirely defeat the'pur-! pose of the elective franchise.

It thus becomes just as necessary that illegal voting be prevented as that legally qualified voters be protected in the enjoyment of the privilege; but to secure free and fair elections, it is indispensable that an examination of the qualifications of each person claiming the privilege of voting should be made by a competent tribunal at some time before his vote is polled, which clearly the Legislature has the power to fix; for the injunction that, for the support of free suffrage, laws shall be' passed regulating elections and prohibiting all undue influence thereon, implies legislative discretion as to the time when and the manner in which the examination shall be made, and the right of each person to vote determined; and it is only when such laws add to the qualifications prescribed by the Constitution, or impose unreasonable conditions of the exercise of the privilege of voting, that courts can interfere.

It is true that, until the passage of the act in question, there never was in this State any law, general or local in its application, requiring an examination at any other time or place or by any other officers than on the day of election, at the place of voting, and by those conducting the election; but the non-exercise of the power proves nothing more than that the exigency requiring a registration of qualified voters before the day of election has not, in the opinion of the Legislature, heretofore existed. * As said by Cooley in his work on Constitutional Limitations, 602: “The provisions for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised. Such regulations must always have been within the power of the Legislature unless forbidden.” And he cites in support of his position numerous authorities, including the leading case of Capen v. Foster, 12 Pick., 485, decided as early as 1832. On the other hand, we have been referred to no case where such law is now. held to be invalid.

2. If, as we think is beyond question, the Legislature may, without infringing the constitutional privilege of suffrage, enact a general registration law, the only way to avoid the conclusion that it may also, in its discretion, enact such law, local in its ■operation, is to make it appear that some provision ■of the Constitution or some right of the qualified voter would be violated in the latter case and not in the former; for the end sought in each case is the support of the privilege of free suffrage, which involves the rigid and certain. exclusion of those not entitled to vote, as well as the protection of those in the exercise of the privilege who are; and it is not simply a question of power, but is made the .duty of the Legislature to adopt such regulations, whether general or local, as may be necessary to-attain that end in each and every part of the State.

It is, however, contended by counsel, that a local registration law, like the one under consideration, which prescribes rules to govern the exercise of the-right of suffrage different from those established in other portions of the State, violates section 7, article 13, which provides “that all elections shall be-free and equal.”

What are free and equal elections in the meaning of the Constitution?

They' certainly are not such as may be secured by the indiscriminate exercise of the right of suffrage, without regard to qualifications or regulations necessary to test and determine the right of those who offer to vote. Nor can elections be considered free and equal when in a portion of the State they may be conducted under the general law comparatively free from the influence of force and fraud, while in another portion, for the want of more suitable and effective regulations than are provided by the general laws,, the timid and weak are deterred by violence or tumult from attempting' to vote;, and illegal votes, added to those influenced by bribery, constitute a balance of power, and often a majority of the whole number given.

Elections are free and equal only when all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molésted or intimidated, and when the polls are in each county and in each precinct alike freed from the interference or contamination of fraudulent voters.

In the country and small towns, where comparatively few persons offer to vote who are strangers to officers of elections, or who can not be readily identified, the necessary examination and test of qualifications may be made on the day of election at the voting places without much hinderance or risk of imposition. But in large cities, where there are greater temptations and facilities for illegal voting, always producing confusion and disorder, it is often impossible for officers of elections, without previous registration of qualified voters, to either prevent fraud or afford to those entitled the ' opportunity to safely, quietly, and promptly cast their votes.' And from necessity other and more effectual regulations than are provided by the general law, or than are required' elsewhere, or a majority of the people of the State would probably be willing to adopt, must be provided for such places in order to secure therein free and equal elections in the meaning of the Constitution as we understand it. Such regulations would not, as erroneously argued by counsel, be in any sense qualifications additional to those prescribed by the Constitution, or different from those required of voters elsewhere in the State, but simply the means by which more certainly and effectually to support free suffrage; and as such they are authorized, and wherever necessary, required by the Constitution.

In our opinion we are not authorized tó hold a registration law invalid upon the sole ground that it is local .in its application; and this view seems to be in accordance with the current of authority in this country.

The act in question provides for the appointment of officers of registration for each precinct in the city, who are required to attend at the voting place for three successive days previous to each election, and to register all qualified voters who personally appear before them and apply for registration.

Section 6 of the act is as follows: “Every person shall be entitled to be registered who would be entitled to vote at the next succeeding August election; that is to say, every male citizen who, on that day, shall have attained the age of twenty-one years, and shall have resided in the State two years, or in the city one year, and in the precinct in which he .offers to register sixty days,” etc.

It seems to us that the latter or explanatory part of the section quoted is not only inconsistent with the first part, but in direct conflict with section 8, article 2 of the Constitution. According to the plain language of the Constitution, a residence of one year in Jefferson- county next preceding the election by a male citizen of the age of twenty-one years, gives him a right to vote ¿n any precinct of that county •of which he may have been a resident for sixty days next preceding the election, and there is nothing in the act which would prevent a person who has •resided in the city of Louisville ten months from voting in any precinct in Jefferson county, outside the city, to which he may remove, and in' which he may reside the residue of the year next preceding the election.

But as the act stands, a residence in Jefferson .county outside the city to within- sixty days, of one ■year does not avail a person removing to the city, although he may reside in one of the precincts, thereof the remainder of the year next before the-election. The bare statement of the unequal and unjust effect of such an interpretation of the Constitution is enough to condemn it. But the two parts of the section are not essentially connected in substance; and, as the first part is complete in itself, the latter may, according to an accepted rule of construction, be severed and stricken out without destroying the sense or invalidating the residue of the section quoted.

By section 14 it is provided that the registration books shall be produced at the several precincts in the city when the polls are opened on the day of election,.and “at said election no vote shall be received unless the name of the person offering to votéis on the registry provided in this act, or unless he produce before the officers of election his written affidavit, stating that he was necessarily -absent, or that he was ill and unable to attend, or that some named member of his family w'as so ill as to require his constant attention, such absence or illness covering 'the period allowed for registration, and stating facts showing him to be a qualified voter of the precinct, and also the facts in, reference to his residence required to be entered on the register ;■ and shall also prove, by the written affidavit of a registered voter of the precinct, who is a householder, that he knows-such person to be a registered voter, and stating the facts in reference to such person’s place of residence required to be entered on the register.”

The objection, made to the portion of the section quoted is the difficulty in some cases of making the required proof, whereby, as argued, persons may be embarrassed in the exercise of their right, and occasionally debarred entirely. But if, by the failure of a person to appear before the officers of registration at the time appointed by law, it becomes necessary, in order to save his right to vote, that an exception be made in his favor, we do not think he has a right to complain of regulations adopted for the purpose, and which the Legislature deems necessary to shut out fraudulent voting. Moreover, the question is made, which is proper to decide, whether, to-make the act valid, it is indispensable that there-should be any provision for an examination on the day of election of the qualification of voters.

It would seem that the right of the' Legislature to enact a registration law being conceded, and the-reasons and importance of it being recognized as-vital and urgent, there exists no necessity or propriety for engrafting upon it any provision which opens the door for the very evils it was intended to guard against.

The Constitution provides ■ that each election by the people shall continue but one day, which results in inevitably depriving those who are absent, from any cause, on the day of election, of the right to vote; yet the evils which would result in various ways from a longer continuance than one day are to be avoided, even if thereby some persons are prevented for the time being from voting. By the act under consideration three days are given in which ■«very person in the city qualified to vote has a reasonable time in which to have his name put on the .list. It might, perhaps, be proper to make provision for the registration at some other time, before the day of' election, of those unavoidably absent •during the three days; but we do not perceive how the constitutional privilege of a qualified voter is .taken from him when he is afforded a reasonable opportunity before the election to register. We, however, do understand how many persons who are ready and desire to vote may be kept from the polls by tumult, violence and fraud on the day of election.

Except in respect to the objectionable part of section 6 referred to, none of the provisions of the act .are invalid; those parts of it in relation to the evidence, which may be heard as to qualifications of voters, being ■ similar to provisions in the general law regulating elections that have never been called in question.

But the indictment being for perjury, is defective, for the reason that it does not appear therefrom •whether the place at which appellee stated in his affidavit Campbell resided was or was not in the limits of the precinct in which he, Campbell, is •charged to, have voted, and for that' reason the judgment must be affirmed.