Gillespie v. Palmer

20 Wis. 544

• Court: Wisconsin Supreme Court
• Decided: January 15, 1866
• Status: Published

Opinion

Downer, J.

Section 1, Art. 3 of the constitution of this state, provides that white male persons, over the age of twenty-one years, who have resided in this state one year next preceding any election, and who are citizens of the United States or have declared their intentions to become citizens, and also certain persons of Indian blood, shall be deemed qualified electors at such election. Then follows a proviso in the following words: “ Provided, that the legislature may at any time extend by law the right of suffrage to persons not herein enumerated; but no such law shall be in force until the same shall have been submitted to a vote of the people, at a general election, and approved by a majority of all the votes cast at such election.”

The first question for our consideration is, what is the mean ■ ing of the words in this proviso, “ approved by a majority of all the votes cast at such election f" Three different constructions of this clause were suggested on the argument:

1st. That it required that the extension of suffrage should be approved by a majority of all the votes, on all subjects and for all officers, cast at such election.

2d. That it should be approved by a majority of all the voters voting at such election.

3d. That it should be approved by a majority of all the votes on that subject cast at such election.

Is the first construction correct ? What is the meaning of the word “ vote” ? It is the expression of the choice of the voter for or against any measure, any law, or the election of any person to office. At a general election there are several officers, both state and county, to be elected, and there may be measures to be voted on. The expression of the choice of the voter in favor of any candidate for office by depositing a ballot for him, is a vote for such candidate; and if there are several candidates for different offices, and the voter votes for each, he casts in so doing as many different votes as there are candidates for whom he votes; and it makes no difference that they are all on one piece of paper or ticket. The same voter, at an election where the extension of the right of suffrage was voted on, might cast one vote in favor of that measure, and if there were ten candidates for as many different offices, state and county, voted for at such election, as there frequently are, cast a vote for each of such candidates. If the first construction, requiring a majority of all the votes on all subjects and for all offices, cast at such election, in favor of the extension of suffrage, before it can be adopted, is the true construction, then the same voter might cast one vote in favor of the extension, and in voting for the candidates for the different offices cast ten votes which would be counted against the very measure he voted for. This absurdity involved in the first construction is conclusive against it.

To adopt the second construction would be to say that the word “ votes,” in the clause in question, meant the same as the word “ voters.” These are two words which mean very different things — are never used as synonymous, even in the loosest common conversation. But although these words are not synonymous, yet by a figure of speech the thing done is sometimes put for the doer. This is however seldom or never done in such instruments as state constitutions, which are formed with deliberation and care, and in which language is used literally and with great precision. If, however, we should concede that the clause in question could be construed to mean, or was equivalent to “approved by a majority of all the voters voting at such election,” it would not follow that it had reference to a majority of voters voting on any other measure than the one mentioned in the proviso ; or that the number of votes east at such election for the candidates for any office should determine whether the suffrage was extended or not.

Why should such a test be required on this question? Ordinarily at a general state election the candidates for governor receive as many votes as those for any other office ; and if the construction contended for should prevail, the extension of suffrage, to be carried, must receive — not a majority of votes cast on that subject, but the number of votes cast for it must at least be equal to a majority of the votes cast for all the candidates for governor at such election. It must be even more: it must be equal to a majority of all the voters voting at the election for any and all candidates, not only for the same office, but for different offices and for different measures. The candidates for governor at such election may not receive the votes of all the voters voting at such election, though they may receive more than the candidates for any other office. For there may be voters who, from want of confidence, or private pique or ill will, will not vote for any of the candidates for governor, who will vote for the candidates for other offices; and there may be those who, for the same reasons, would not vote for the candidates for secretary of state, who would vote for the candidates for governor, state treasurer and other offices ; and the same may be true in relation to the votes given for tire candidates for tire respective offices; so that all the candidates for any one office may not receive the votes of all the voters voting at such election by several hundreds and perhaps thousands. And yet the construction contended for requires that the extension of suffrage, to be carried, should receive a majority of the votes of all the voters voting at such election for any and all candidates — should receive more votes than is required to elect a governor or any other officer, or to carry any other measure. Is it reasonable to suppose that this ■was the intention of the convention ? Under the provisions of our constitution, as well as of other constitutions, persons are elected to a particular office who have a majority of the votes cast — not for the candidates for some other office, but for the candidates for that office. Measures or laws are also declared adopted or rejected according as they receive or fail to receive each a majority of the votes cast for or against it. To declare a measure or law adopted or defeated — not by the number of votes cast directly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself, would not only be out of the ordinary course of legislation, but, so far as we know, a thing unknown in the history of constitutional law. It would be saying that the vote of every person who voted for any candidate for any office at such election, and did not vote on the suffrage question, should be a vote against the extension of suffrage. If this construction is correct, there would be no necessity of providing by law, as the legislature did, when the question was submitted to a vote of the people, for the casting or recording of any votes directly against the extension of suffrage; for if the votes in its favor are not equal to a majority of all the voters voting for any and all of the candidates voted for at such election, the second section would not become a law. So to construe the clause of the constitution would make it a very extraordinary provision, and it appears to us that the construction we are asked by the counsel for the respondents to give it, is forced and unnatural, and should not be given if any other can reasonably be given to the clause. It is more in accordance with the general principles of legislation upon such subjects, and more reasonable, to construe the clause as a provision for the extension of suffrage in case a majority of all the votes on that subject cast at any general election should be in its favor. We do not see how any other construction can reasonably be given to the clause. The words added by this construction are words which, whenever the same or similar language is used in reference to a vote on any measure or for any office, are generally understood.

According to section 1, article XII of the constitution, the legislature may propose amendments to it, and if they are approved by “ a majority of the voters voting thereon," at the time prescribed by the legislature, the amendments become part of the constitution. The right of suffrage by such amendment could be given to colored persons. Is it probable that the framers of our constitution required more votes to extend the right of suffrage in one way than in another ? More votes to approve an act of the legislature conferring the right when so approved, than to make and approve any and all amendments of the constitution, including that conferring suffrage on colored persons? We see no reason for sucha conclusion. Nor do we think much weight should be attached to the action of the board of canvassers in 1849, construing the clause under consideration. The secretary of state and the then clerk of the supreme court canvassed the votes at that time and declared the result. It does not appear that the highest law officer of the state, the attorney general, expressed any opinion, or was consulted on the subject.

The next question is, did the act authorizing the extension of suffrage to be submitted to a vote of the people contain the necessary provisions or machinery to carry it into execution ? It is said that no provision is made for canvassing the votes on this measure cast at the respective polls, and no provision for any returns to the secretary of state, or that the state canvassers shall canvass the votes. The act submitting the extension of suffrage to a vote of the people (sec. 1, chap. 187, Laws of 1849,) provides, inter alia, for a separate ballot in a separate box at each poll; and also, “if at the said election a majority of all the votes cast at such election shall be given in favor of equal suffrage to colored persons, then said section two of this bill shall be a law.” Section two conferred the right of suffrage on male colored inhabitants over twenty-one years of age. The complaint avers that a majority of all the votes cast at that election upon the question whether the said right should be so extended, was in favor of such extension. The demurrer admits the truth of the complaint

As a matter of history we know that the returns of votes on this subject were made to the secretary of state, and canvassed by the state canvassers. We will not now stop to enquire whether the general laws then in force did or did not authorize then action. Eor if an issue were joined denying the allegations of the complaint, we are of opinion they could be proved, so far as they relate to the number of votes cast on the suffrage question, by the best legal proof the nature of the case would admit of; and if the number could be proved in no other way, the court might receive the testimony of living'witnesses, such as the inspectors, as to the number of votes cast at each poll

It is contended by the respondents that the complaint is defective because it does not aver malice on their part in rejecting the vote. Chapter 7, R.'S., prescribes the duties of the respondents as inspectors, and they are, in substance, that it shall be the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect not to be duly qualified as an elector. One of the inspectors may then administer to the person offering to vote an oath that he will truly answer such questions as shall be put to him touching his residence and qualifications as an elector. If the person refuse to take the oath, or to answer any of the questions put to him, his vote is to he rejected; but if he take the oath and answer the questions, however false may be his answers, and however clearly they may show that he has no right to vote, and he still insists upon voting, it is their duty to tender to him the oath prescribed in section thirty-six of the act; and if he takes it, to receive his vote. If he swears falsely, or votes without the requisite qualifications, he may be, on conviction, punished. But if he takes the oaths and answers the questions put, there is no discretion with the inspectors. They are mere ministerial officers; certainly far from being judicial. The registry act provides in substance that any one may have his name registered as a voter upon taking the same oaths and giving the same information required for voting. If the inspectors are mere ministerial officers, then we see no good reason why the general principle of law, that a ministerial officer is liable for a wrong done by him acting in his official character, though without malice, should not be applied. It is held otherwise, however, in England, in New York and some other states. The reason of these decisions appears to be, that the inspectors of elections are entrusted with a discretionary authority, and are quasi judicial officers. In Massachusetts and Ohio it is held the action will lie without malice. Lincoln v. Hapgood, 11 Mass., 350; 5 Met., 298; 4 Gray, 433; Jeffries v. Ankeny, 11 Ohio, 373; 9 Ohio St., 568. Some of these decisions are based partly on the state statute law regulating elections, as being different from the English law, but mainly upon the necessity of protecting the highly valued privilege of voting when the law has provided no other remedy. We adopt the rule of these decisions.

It follows that the order of the county court was erroneous.

Dixon, O. J.

I fully agree with Mr. Justice Downes. in the construction to be given to the proviso found in subdivision 4, section 1, article III of the constitution. Without the determination of tTie board of canvassers in 1849, and the consequent action of the legislature and people since that time, all of which may be said to have taken place without serious thought and deliberation, and certainly without debate upon the true meaning of this proviso, I do not see how its language could ever have been the subject of doubt or controversy. To me, to whom the question was new when this case was presented, it has seemed from the very first that the meaning was, a majority of all the votes cast upon the subject. The very able arguments of counsel upon both sides, and subsequent reflection, have only tended to confirm this my first impression, derived from the language of the proviso itself It is obvious from the very reading that three and but three principles or leading ideas were present to the minds of the framers or persons who prepared the proviso: first, that the right of suffrage should not be extended to persons not already enumerated in the section, without the assent of the legislature, to be evidenced by a law enacted for that purpose; second, that such law should not be in force until submitted to a vote of the people and approved by a majority of all the votes cast; and third, that such submission to a vote of the people and majority of all the votes cast should be at some general election. According to the language employed, all the safeguards intended by the framers to be thrown around this important subject of the extension of suffrage are obviously embraced in these three principles. Any other construction, it seems to me, would be a plain violation of the language, and, where that is clear, as I think it is here, it must govern, and there is really no room for construction, except to apply the maxim that “general words shall be aptly restrained according to the subject matter or person to which they relate.” This maxim is of very great weight in all cases where the words used are general, or not expressly applied in the text to-the subject matter or person under consideration. It applies with peculiar force to the words in this proviso, “votes cast,” which are general, and limits them to votes cast upon the subject which the framers had in mind, namely, the extension of suffrage.

The only words which can, as it seems to me, possibly lead one to any different conclusion, are the words “ at such election,” found at the end of the clause. With those words omitted, it seems to me that no one could hesitate, but that all must assent to the correctness of our views. I have already said that one of the principles manifested by the provision was, that the question should only be submitted and the votes taken at some general election. The object of this is very clear. At such an election the voters are more generally at the polls. Other questions are to be acted upon, and measures adopted or rejected, in which all or a greater number of the electors feel an interest. At such an election a more full and fair expression of popular opinion would be obtained upon the question of the extension of suffrage. On the other hand, if the question were to be submitted at a special election ordered for that purpose, only those feeling an especial interest in it would attend, and the measure might be carried or defeated by a majority of the votes cast, whilst if it had been at a general election, with all or nearly all the qualified voters present at the polls with an opportunity to vote upon it, there might have been a very-decided expression of public opinion the other way. Such was the advantage to be gained by a submission “ at a general election,” and so prominent was the idea in the minds of the framers, that it is repeated at the end of the clause after the words “ votes cast.” The words “ at such election” were inserted, as it were, ex industria, the more carefully and thoroughly to exclude the idea that a majority of votes cast at any other than a general election should suffice. Such repetitions are not unfrequent in legislative enactments, and are sometimes found in written constitutions. To say “ a majority of all the votes cast at such election” is no more than if the framers had said “a majority of all the votes cast at a general election,” thus repeating the exact words previously used. In either case the sense would have been the same if the last words had been omitted, but the repetition expresses or seems to express the intention of the framers with greater certainty and precision. But in neither case, in my judgment, does the addition afford the slightest ground for saying that the framers intended that votes cast at the same election upon other subjects should be counted either for or against the law for extending the right of suffrage. Such a provision in the constitution of a state would be an anomaly in our system of government. It would be contrary to the fundamental American idea, which is that in all popular elections the will of the majority of the voters voting upon any subject or question submitted shall prevail. It must be supposed that the convention acted upon this idea in forming and submitting, and the people in ratifying the constitution, and its language must be interpreted in conformity to it, unless a contrary intention is clearly expressed. If we look to other similar provisions of the constitution, and especially those which elicited debate and a careful examination of the language employed, we find this idea strictly adhered to. This is strikingly exemplified in the section which provides for submitting to the voters the question of “ bank or no bank.” The same is also true of the provisions for submitting amendments to the constitution, for calling a convention to revise or change it, and some others. All these provisions, instead of showing or tending to show, as was contended, that an actual voting majority was not to govern upon the question of the extension of suffrage, seem to me to tend very strongly and almost irresistibly the other way. They fix the principle upon which the convention acted and intended to act in all such cases.

Upon the question whether the word “ votes” can be construed to mean “ voters,” I deem it unnecessary to add anything to what is said by Mr. Justice DowneR. I agree with him upon that, as also upon the other points discussed in his opinion.

Cole, J.

I liave not deemed it necessary to write out my views upon tlie legal questions involved in tliis case, and sliall content myself with, saying tliat I fully coucur in tlie opinions delivered by the Chief Justice and Mr. Justice Downer.

By the Court. — The order of the county court sustaining the demurrer to the complaint is reversed.