Morgan v. Dudley

57 Ky. 693

• Court: Court of Appeals of Kentucky
• Decided: January 20, 1858
• Status: Published

Opinion

Judge Simpson

delivered the opinion of the court.

Morgan brought this action against Dudley for denying him the privilege of voting, at the last August election; in the city of Lexington, at the election precinct in which he resided. He alleged, in his petition, that he was a free white male, above the age of twenty-one years, and had, previous to his application to vote, continuously resided one year next preceding the election in that election precinct in the city of Lexington; and had, on the 24th of July, 1857, been naturalized under the act of congress, by the city court of Lexington; all of which was proven to the satisfaction of the judges and the defendant. That the judges differed in opinion as to the plaintiff’s right to vote, and the duty devolved upon the defendant, as sheriff, to decide whether he had a right to vote or not, and that the defendant, "knowingly ‘ and willfully, with the intention unlawfully to de- ‘ prive said plaintiff of his right to vote, refused to ‘ receive his vote, and thereby unlawfully prevented ‘ him from voting.”

The defendant filed a demurrer to the plaintiff’s petition, assigning for cause—

1. That the petition did not allege facts sufficient to constitute a cause of action.

2. The Lexington city court had no authority to hear applications for, and grant certificates of, naturalization.

3. That the residence of the plaintiff, since he was ¡naturalized, was not sufficient to entitle him to vote.

The circuit court sustained the,dem.urrer, and rendered a judgment against the plaintiff, from which judgment he has appealed to this court.

Can an action be maintained against the judges of an election, or the sheriff when he acts as umpire between them, for deciding erroneously, that a person offering to vote is not a legal or qualified Aroter? This is the first inquiiy that naturally arises in this case, for unless such an action can be maintained the other questions that have been discussed so much at large, do not come properly before us for our consideration.

l. No judicial gradeas such, is hable to suit for a judicial opinion, Jjeous^maybe] if it be not influenced by improper motives. (4*66,28.) 2. No action can be maintained against the “judges oí elections, whose functions are to some extent judicial, for refusing to receive a vote, without allegation and proof that they were influenced by bad motives,and decided contrary to their own honest convictions of what was right and proper.”

It is undoubtedly true, as a general principle, that when ever a right is violated the law provides a remedy for the iniury. But this, like all other general J J J ° rules, is subject to exceptions. From the very nature of a judicial tribunal its action must necessarily be in some degree exempted from the operation of , . . . i t-i i • • • i . this principle. Every erroneous decision violates some right, and works an injury to some party. But as every human tribunal is liable to err, no judge even of the most inferior one, should be held responsible for a mere error of judgment, committed by him in the regular discharge of the duties of his office. The judges of the election, of whom the sheriff becomes one when the judges disagree, may err in determining upon the legality of a vote offered to be given, and thus reject a voter who is legally entitled to vote, but if the decision was the result of a mere error of judgment, and was not induced by improper motives, no action can be maintained on account of such erroneous decision.

Whilst it is admitted to be essential to the just rights of electors and also of candidates, that the right of suffrage should be freely exercised by the qualified voter, it is equally essential that those who are called by their official duty to preside at elections, and to decide on the qualifications of voters, should be sustained and encouraged, in the faithful and conscientious discharge of their duty.

No action ought then, in principle, to be maintainable, against the judges of an election, whose functions are to some extent judicial, for refusing to receive a vote, without alleging and proving that in so acting they were influenced by bad motives, and decided contrary to their own honest convictions of what was right and proper.

A different rule seems to prevail in the state of Massachusetts, and it has been there settled, in a series of decisions, that an action can be maintained against the selectmen, who preside at an election, for refusing the vote of a qualified voter, even although they may have exercised an honest andfai'r judgment on the question before them. (Kilham vs. Ward, 2 Mass. 236; Lincoln vs. Hapgood, 11 Mass. 350; Henshow vs. Foster, 9 Pick. 312.)

3. A sheriff, whose duty it is to decide on the qualification of voters,when the two judges disagree in regard to the qualification of voters, acts judicially.

This rule seems to have been adopted from an anxious desire to protect and secure the right of suffrage, aright which is invaluable and secured by the constitution; but it should be remembered, that whilst it is essential to the proper operation of the true principles of a representative government that no unnecessary obstructions be thrown in the way of the exercise of the right of suffrage by the qualified voter, it is equally necessary, for the attainment of-the same end, that the public officers should be protected and sustained, in denying this right to such unqualified persons as may attempt its usurpation.

The judges of an election, as well as the sheriff in deciding between them when they disagree, act judicially in passing upon the qualifications of a voter. And it is well settled, that no action can be supported against any person acting judicially, within the limits of his jurisdiction, though he should act illegally or erroneously, unless he has acted from impure or corrupt motives. (Gregory vs. Brown, 4 Bibb, 28.) The harmony and analogies of the law will therefore be best preserved by adhering to the general principle, which seems to have been adopted in such cases in England, and in most of the states of this union.

We are of opinion, therefore, that an action can be maintained against the judges of an election, and the sheriff when he acts in the capacity of a judge, for refusing to permit a qualified voter to exercise the right of suffrage; but to sustain the action it is necessary to allege and prove, that the defendant, in deciding that the plaintiff was not entitled to vote, did not act according to his honest conviction of his duty, and of the legal rights of the plaintiff, but acted knowingly wrong, under the influence of impure and corrupt motives.

4. The allegation in a petition against a sheriff who refused to permit the plaintiff to vote when he had a right to vote, “that the defend’t knowingly and wilfully, with an unlawful intention, refused to receive the plaintiff’s vote” shows a good cause of action. 5. The act of naturalization, as it is required to be performed by the act of congress, is a judicial act — (Spratt v. Spratt 4 Peters, 393,) and congress cannot authoritatively confer jurisdiction on state courts, or compel its exercise. (Huston vs Moore, 5 Whea ton, 27, which was a criminal case. Haney vs. Sharp, 1 Dana, 442.)

The petition in this case alleges that the defendant knowingly and willfully, with an unlawful intention, refused to receive the plaintiff’s vote. The charge might have been made more explicit, by an averment that the defendant knew that the plaintiff was legally entitled to a vote, and had, notwithstanding such knowledge, wilfully, and from improper motives, refused to receive his vote. Construing, however, the charge as made to be susceptible of this meaning, according to a liberal interpretation of it, the petition may be regarded as sufficient in this respect to enable the plaintiff to maintain his action.

The power of state courts, to naturalize aliens, in the mode prescribed by the acts of congress, is the next question that we are called upon to discuss and consider.

The constitution of the United States, (article 1, section 8,) gives to congress the power “to establish an uniform rule of naturalization.”

The act of congress of 1802, passed in virtue of this power, and entitled, “an act to establish an uni- ‘ form rule of naturalization, and to repeal the acts ‘ heretofore passed on the subject,” designates certain state courts, by which, as well as by the federal courts’, the power of admitting foreigners to citizenship may be exercised. The 3rd section of the same act, to render certain what state courts were referred to, expressly enacts, “That every court of record ‘ in any individual state, having common law juris- ‘ diction, and a seal and clerk or prothonotary, shall ‘ be considered as a district court, within the mean- ‘ ing of this act; and every alien who may have been ‘ naturalized in any such court shall enjoy, from and ' after the passage of the act, the same rights and ‘ privileges as if he had been naturalized in a dis-1 trict or circuit court of the United States.”

It is not controverted that the process of naturalization, in the mode it is required to be performed by tile act of congress, is a judicial act. It was decided, in the case of Spratt vs. Spratt, 4 Peters, 393, to be of that character, and that the admission to citizenship, when entered of record, furnished complete evidence that the requisitions of the act of congress had been complied with. Nor will it be contended that congress can authoritatively bestow judicial powers on state courts. In the case of Huston vs. Moore, 5 Wheaton, 27, it was “held to be perfectly clear, that ‘congress cannot confer jurisdiction upon any courts, ‘ but such as exist under the constitution and laws of ‘ the United States, although the state courts may ex- ‘ ercise jurisdiction in cases authorized by the laws ‘ of the state, and not prohibited by the exclusive ‘jurisdiction of thefederal courts.” The jurisdiction referred to related to criminal cases, and in such cases it seems to be conceded that every government must execute its own penal and criminal laws, and cannot confer any jurisdiction upon the courts of other states for that purpose. It was upon this principle that the case of Haney vs. Sharp, (1 Dana, 442,) was decided, this court denying the jurisdiction of the state courts, in that case, upon the ground that every government has an exclusive right to enforce its own penal laws. The supreme court of New York, in the case of the United States vs. Dodge, (14 Johns. Rep. 95,) held that they had jurisdiction, and sustained a suit on a bond for duties given'to a collector of the United States’ customs, under the judiciary act of 1789, giving concurrent jurisdiction to the state courts, in suits at common law, where the United States were plaintiffs. But the same court in the case of the United States vs. Lathrop, (17 Johns. Rep. 4,) subsequently decided, that a state court had no jurisdiction of an action in favor of the United States to recover a penalty for a breach of a law of the United States, although the act of congress made it cognizable in a state court.

6. The authorities on the sub-

The conclusion that seems to be warranted by all the decisions on the subject is, that in judicial matters the concurrent jurisdiction of the state courts, depends altogether upon the pleasure of congress, in every case in which the subject matter can constitutionally be made cognizable in the federal courts; and that the state courts will, in civil actions, unless prohibited, retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject matter. (1 vol. Kent's Com. side page, 400.)

jeet of jurisdiction conferred On state courts by congress, seetn tobe “that in judicial matters, the concurrent jurisdiction of the state courts depend upon the pleasure of congress in every case in which the subject matter can constitutionally be made cognizable in the federal courts, and that the state courts will, in civil actions, unless prohibited, retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject matter. (1 Kent’s Com. side page 400.) 7. Although congress cannot compel state courts to exercise a jurisdiction which it may confer, and for the performance of which they have an adequate inherent jurisaiction, yet if the state courts do exercise the power, it is a valid act. 8. Every court of record,whether of a state or of the U. States, having common taw j urisdiction, is fully compe tent to perform every act which is necessary to be done in the process of naturalization. As state courts may authorize the officers of other states to do certain acts, as taking depositions, &c.which, when done in conformity with the power conferecí, is valid.

When, however, we admit that congress cannot authoritatively confer judicial powers on state courts, we only mean that congress cannot compel them to entertain jurisdiction in any case, or to perform any judicial act. But we do not mean that congress cannot empower them to perform any judicial act, to which they are competent, and for the performance of which they have an adequate inherent jurisdiction. The argument which denies to state tribunals the power to perform the process of naturalization erroneously assumes, for its premises, that the performance of that act renders it necessary for them to be invested with some jurisdiction in addition to that which they already possess. This, however, is an evident mistake, and hence the fallacy of all the reasoning that is based upon such an erroneous assumption.

Any court of record, having common law jurisdiction, is fully adequate to the performance of every thing required to be done, in the process of naturalization, as prescribed by the act of congress. Such a court can swear witnesses, and determine whether the applicant has resided within the United States five years, and during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same, and then administer to him the oath of allegiance and naturalization; and being a court of record, it can require all the proceedings to be duly recorded. The act of congress expressly declares that every alien thus naturalized shall be a citizen of the United States. As the subject is one over which congress has the exclusive control and power, and has therefore the right to declare what act shall constitute an alien a citizen of the United States, it may well be doubted whether the effect of the act, when performed in the manner congress has prescribed, could be called in question, on the ground that the tribunal which is empowered to do the act, has not the necessary jurisdiction, even if it had no other power than that conferred upon it by the act of congress. The legislature of any state can enact laws, by which foreign tribunals and magistrates will be empowered to do certain acts which, when performed in the manner prescribed by the law, will be valid and effectual for every purpose. Thus depositions are- taken by, and deeds acknowledged or proved before, certain officers residing in other states, and in foreign countries. The legislature of Kentucky cannot confer any jurisdiction upon a court or magistrate in another state, yet it can empower one to hear proof of the execution of a deed, and to decide whether it has been executed by the grantor, and the other to take and certify depositions, and can make both acts valid when performed. The deed thus proved before a court in another state, and certified according to law, will be sufficient to pass the title to any land embraced by it within the limits of the state, and the depositions thus taken by a non-resident magistrate are admissable as evidence in any court in this state, in which they have been taken to be used. These acts derive all their efficacy and validity from the act of the legislature which authorizes their performance, the subject matter being one over which the legislature of the state has exclusive power. Why then cannot congress, where it has exclusive power over the subject matter, authorize a state tribunal to perform an act, and impart to it, when done, as much validity as is given to similar acts performed by foreign tribunals, when authorized by state legislation? The only reason assigned is, that congress has prescribed a mode of naturalization which makes it a judicial act, and therefore, unless it can confer the necessary jurisdiction, a state tribunal has no power to perform the act. The same course of reasoning would render invalid all the acta referred to which are authorized by state legislation. The state of Kentucky cannot confer the power on a magistrate in another state, lawfully to administer an oath to a witness, called upon to depose in an action pending in this state. But does that render the testimony of the witness inadmissible? Cannot the legislature of this state impart, by law, the same validity to the testimony thus taken that it would have if taken by one of our own magistrates in our own state? If so, congress has certainly the same power to impart validity to-an act which it authorizes a state tribunal to perform, although it may assume the form- of a judicial act. Congresshas the exclusive power to appoint the mode in which a foreigner shall he naturalized, and having done so, the act of naturalization, when performed by a state tribunal, in the mode prescribed, has the same effect given to it that it is entitled to when performed by a court of the United States. If congress had authorized the clerk of any state court, that is a court of record, to naturalize an alien, then, according to the argument relied upon, the act of naturalization, when thus performed, being merely ministerial, would have been legal and valid. But having authorized it to be done by the court itself, and not by its clerk, it is made a judicial act, and for that reason becomes illegal and invalid. The act of naturalization, however, when performed either by the clerk or the court, would derive all its effect from- the act of congress, and would be equally valid whether performed by one or by the other.

But as before remarked, such state tribunals as are designated by the act of congress have an original and inherent jurisdiction, fully adequate to the performance of every act required in the process of naturalization accoi’ding to the mode prescribed; and no increase of jurisdiction is necessary to enable them to act judicially upon the subject.

Kent, in his Commentaries, (vol. 1, side page 397,) says: “State courts may, in the exercise of their ordinary, original and rightful jurisdiction, inciden1 tally take cognizance of cases arising under the ‘ constitution, the laws, and treaties of the United ‘ States.” This is the true principle upon which the jurisdiction is exercised; not upon the ground of a judicial authority conferred as such, by a law of the United States, but as the ordinary jurisdiction of the state court. Upon this principle it was decided by the supreme court of Massachusetts, in the case of Ward vs. Jenkins and, others, (10 Metcalfe, 583,) which was a suit by the assignee of a bankrupt, under the United States bankrupt act of 1841, that if a case foe within the ordinary jurisdiction of a state court, the court may- take cognizance of it, though the cause of action arises under rights acquired by a statute of the United States. And upon the same principle, the supreme court of Alabama, in the case of Giller vs. Herndon, decided that the state courts had cognizance, concurrently with the federal courts, of cases of fraud in a bankrupt’s discharge under the act of congress. The same principle was recognized in the case of Wallace vs. McConnell, (13 Peters’ U. S. R. 136,) in which it was held that an attachment commenced and conducted to a conclusion in a state court, before the institution of a suit against the debtor in a federal court, was a good defense to the action. And the jurisdiction of our own state courts, concurrently with the federal courts, of cases of fraud in a bankrupt’s discharge, has been frequently recognized in this court, and was never doubted. All these cases were regarded as being embraced by the ordinary jurisdiction of the state courts, and were taken cognizance of by them for that reason. As this ordinary jurisdiction is sufficient to enable the state courts to decide controversies between individuals, in relation to matters arising under the laws of the United ¡States, why is it not sufficient to enable them to perform a judicial act, which is an ex parte proceeding, in which the rights of adverse parties are not in any manner involved, and which is expressly authorized by the act of congress?

9. The fact that state courts have for a long period of time exercised the power of naturalization is a strong argument in favor of its exercise, especially as its legality has been repeatedly re co g nized — (Campbell vs. Gordon <$• vñfe, 6 Crunch, 176; Starke, vs. Chesapeake In. Co., 7 Cranch, 420,) in which persons naturalized were adjudged to be citizens. (5 Leigh, 740; 1 Hill, 141; 18 Barbour 444; 5 English, Ark. Rep. 621.)

But it seems to us that this question ought now to be considered as settled, even if it were much more doubtful than it is, after the power has been exercised by the state courts, without objection, for more than half a century. We have not heard of, nor have we been referred to, a single decision prior to the present one, in which it was adjudged by any court that the power could not be rightfully exercised. This universal acquiescence in its exercise for so long a period of time, is a potent argument in favor of the conclusion, that the jurisdiction assumed by the state courts is rightful, and not a mere usurpation of illegal power.

This jurisdiction, however, has not only been exercised for so long a period without objection, but its legality has been repeatedly recognized and treated as if it were unquestionable. In the cases of Campbell vs. Garden and wife, (6 Crunch’s Rep. 176.) and of Starke vs. Chesapeake In. Co. (7 Crunch, 420,) persons naturalized by state courts were adjudged to be citizens of the United States. No question was made in either case as to the power of the state courts, to naturalize; that seems to have been conceded, not however as is supposed on the ground of an antecedent jurisdiction, for there was nothing in either case which showed the existence of any such jurisdiction, it must therefore have been, on the ground that their ordinary and inherent powers, as courts of common law jurisdiction, were deemed sufficient to enable them to perform the act.

The jurisdiction of state courts, in such cases, was tacitly recognized in the state of Virginia in the case of the Commonwealth vs. Towles, (5 Leigh, 743;) in the state of New York in the cases of, Ex parte Granstein, (1 Hill, 141,) and John Clark’s case, (18 Barbour, 444,) and also in several other states; in none of which cases was the jurisdiction of the state courts called in question. But the question does appear to have been made and expressly decided by the supreme court of Arkansas, in the case of the State vs. Penny, (5 English, 621,) in which the court says, “ there can be no doubt as to the rightful juris- ‘ diction of the state courts in such cases, until extin- ‘ guished by some act of congress, and such appears. ‘ to have been the universal understanding upon this ‘ point.”

10. Such state courts as are designated by the act of congress have the power to naturalize foreigners under that act of congress, and are so recognised by our Revised Stat. pegs 172.

Even those who contend that state courts have no power to naturalize foreigners concede that the state legislatures can confer upon them the power to do it. They insist, however, that an express delegation of power is necessary, and in this we conceive consists the error of the whole argument on the subject. They seem to forget that the state, in the very creation of such courts as are designated by the act of congress, confer upon them all the jurisdiction that is necessary to enable them to perform, judicially, the act of naturalization—that it is a part of their inherent and ordinary jurisdiction, resulting from the very nature of their organization, and inseparably incident to every court of record and of common law jurisdiction, unless its exercise be restrained or prohibited by the power by which the court is created. It is by the exercise of this ordinary jurisdiction that such courts are enabled to take cognizance of actions brought by assignees in bankruptcy, who derive all their rights under the 1 aws of the United States, as well as in all the cases before mentioned. If this ordinary jurisdiction is sufficient to enable such courts, without any express delegation of power by the state legislatures, to take cognizance of these cases, wh}r should the power to naturalize under the act of congress form an exception to this principle, and require an express grant of jurisdiction, to authorize it to be done? We are notable ourselves to imagine any plausible reason for such a distinction, nor were we furnished with any in the argument of the cause. We are therefore brought to the conclusion that such state courts as are designated in the act of congress have power to naturalize foreigners under that act. Indeed, their authority to do so has been impliedly recognized by our own legislature, in that part of the Revised Statutes, (page 172.) which declares what persons shall be deemed citizens of this state: “ All free white persons, natural- ‘ ized under the laws of the United States, who may ‘ be or become residents of this state,” shall be deemed citizens thereof. How naturalized under the laws of the United States? Of course in the mode and by the courts pointed out by those laws. Thus the acts of naturalization performed by the state courts are expressly legalized by the legislature, and. the authority of such, courts to naturalize foreigners fully and explicitly recognized.

We do not, as it will be perceived, place the jurisdiction of the state courts on the ground that it. has been conferred by the act of congress, although Mr. Justice Story, in delivering the opinion of the supreme court of the United States in the case of Prig,^ vs. The Commonwealth of Pennsylvania, (16 Peters, 622,) says, with respect to the right of congress to confer power on.the state authorities:.

“As to the authority so conferred upon state mag- * istrates, whilst a difference of opinion has existed * and may still exist on the point in different states, ‘ whether state magistrates are hound to act under it, ‘ none is entertained by this court, that state magis- ‘ trates may, if they chose, exercise that authority ‘ unless prohibited by state legislation.” The authority referred to is evidently that conferred by the United States, for if it were that emanating from, the states themselves no question could have arisen, whether state magistrates are hound to act under it, inasmuch as their duty to do so would be plain and imperative. This dictum therefore seems to warrant the conclusion, that the court entertained the opinion that congress can confer jurisdiction upon state courts, which they may exercise, unless prohibited by state legislation.

11. The Lexington city court being a court of record, having a clerk and seal, being vested with a limited common law jurisdiction, has authority to admit aliens to citizenship.

Nor do we place the validity of the act of natuj’alization by state courts on the ground that congress having exclusive power over the whole subject, can therefore make it valid as a naturalization act, and thus confer citizenship upon a foreigner, whether such courts have jurisdiction to act judicially over the subject matter or not, although vei-y forcible arguments, deduced from both principle and authority, have been urged in favor of both of these positions.

But we place it upon the broad ground, that such state courts as are designated in the act of Congress have an ordinary inherent jurisdiction, under the common law in force in the states, by which they are created, and incident to their very nature and organization, as coux-ts of common law jurisdiction, which enables them to perform judicially the process of naturalization in the mode prescribed by law, and that having been authorized by congress to act judicially on the subject, their acts are as valid as if they were performed by one of the courts of the United States.

The Lexington city court is erected by the act which incorporated the city. It is a court of record, has a clerk and seal, and is vested with limited common law jurisdiction. The act of congress, in designating the state courts that have authority to admit aliens -to become citizens of the United States, does not describe them as courts of general common law jurisdiction, but as courts having common law jurisdiction, and consequently embracing all that has either limited or general common law jurisdiction. If a court have no common law jurisdiction it is not embraced by the act, but if it have common law jurisdiction it is embraced by it, although its common law jurisdiction may be limited. Consequently the city court of Lexington has power to naturalize aliens, and the second ground of demurrer to the plaintiff’s petition was therefore insufficient and invalid.

The third ground of demurrer involves the construction of the eighth section of the second article of the state constitution, which prescribes the qualifications of electors. On the part of the plaintiff it is contended, that his residence in the county of Fayette for two years preceding the election, although he was not naturalized until a short time prior thereto, entitled him to a vote. And on the other side it is contended, that according to the true interpretation and meaning of the constitution, his residence should have continued that length of time after he became a citizen.

The section referred to reads as follows, viz: “Ev4 ery free white male citizen, of the age of twenty-4 one years, who has resided in the state two years, 4 or in the county, town or city, in which he offers to 4 vote, one year next preceding the election, shall be 4 a voter, but such voter shall have been, for sixty ‘"days next preceding the election, a resident of the 4 precinct in which he offers to vote, and he shall vote 4 in said precinct, and not elsewhere.”

The object of this section is to prescribe and define the qualifications of a voter. He is the pei’son to wffiom alone it. refers. To entitle him to a vote he must be a free white male citizen, of the age of twenty-one years; he must have resided in the state two years, or in the county, town, or city, in which hB offers to vote, one year next preceding the election. The residence of the person referred to, for the time prescribed, is what is required. It is not said that his residence shall be as a citizen, or in that character, or that it shall be continued any length of time after he becomes a citizen.

But it is argued that according to the language used, it is only the citizen, who has resided the timé mentioned, who thereby becomes qualified to vote, and that unless he has resided during that time, as a citizen, he has not complied with the terms prescribed; that the citizen, in his character of citizen, is the person referred to in the section, who must reside the time required, and consequently his residence as a citizen is necessary to his qualification as a voter.

„ . 12. Foreigners who have resided in the state, county, and precinct the length of time required by the constitution, are entitled to vote immediately upon being naturalised.

The language may he susceptible of this construction, and it is argued that such is its meaning according to its strict grammatical interpretation. But if it be, it is evidently not its natural or ordinary meaning, nor one that would occur to the common or unlearned reader; on the contrary, it is strained and obscure, and can only be reached by a close analitical examination of the different parts of the whole sentence.

The term citizen is manifestly used in this section, as descriptive of the person who is entitled to vote, and not to designate the nature or character of his residence. If the expression “-who has resided” applies to the citizen as such, and requires a residence by him <2.9 a citizen, why does it not also apply to the whole of the preceding part of the sentence? It would then read, when thus construed, that every free white male citizen, of the age of twentj'-one years, who, as such—that is. as a citizen of the age aforesaid—has resided the time mentioned, shall be a vqter. It would seem, to apply as well to the age as to the citizenship of the person referred to, and the language used will not justify the makirig of any distinction between them. One of thé consequences therefore of the construction contended for, when fully carried out, would be to exclude ^11 persons from the polls, who have attained the ffge of twenty-one, until their residence shall be subsequently continued the length of time required by the section—■ a consequence never contemplated nor intended by the framers of the constitution.

The plain and literal signification of this part of . . . . . , the constitution is, in our opinion, entirely consistent with its evident object and design, that is, to point out the qualifications necessary to entitle a person to a vote. He must be a white citizen of the age of twenty-one at the time he offers to vote, and must have previously resided in the state and precinct the prescribed time, and no other positive qualification is necessary. It does not jequire a residence after he becomes a citizen, or after he attains the age of twenty-one, but only a previous residence next preceding the election, either before or after he acquires citizenship or attains majority.

If any doubt could exist as to its true meaning there are some considerations which it seems to us must effectually silence and remove all doubt upon the subject.

The former constitution of this state, which was adopted on the 17th day of August, 1799, contained the following provision, viz:

“Every free male citizen,' (negroes, mulattoes, ‘ and Indians excepted,) who at the time being hath ‘attained to the age of twenty-one years, and resi- ‘ ded in the state two years, or the count}7 or town ‘ in which he offers to vote, one year next preceding ‘ the election, shall enjoy the right of an elector.”

It will be readily perceived that so far as the present question is concerned there is no substantial difference between this provision and the one on the same subject, which is contained in the new constitution.

The construction of this part of the former constitution was firmly settled by an uniform practice of half a century. The alien who had resided in the state the requisite time was permitted to vote immediately after he became a citizen. His right to do so was never questioned. It was universally conceded, and thus, by general concurrence, the trap meaning of the language used in the constitution, in relation to the qualification of electors, was clearly and unequivocally defined. ' The practice referred to constitutes a part of the history of the state, and as such may be judicially noticed by this court. This construction was also concurred in by the legislature, as is proved by its enactments on the subject of illegal voting. A penalty was denounced by statute on a person who should vote who was not a citizen, or who had not resided in the state two years, or in the county where he offered to vote one year next preceding the election, or who had not attained the age of twenty-one years, or who was not a resident of the state, or who resided in another county, but no fine was imposed on a naturalized citizen for voting before he had resided in the state two years, or in the county one year, after he became a citizen.

The framers of the new constitution must be presumed to have known what construction this part of the former constitution had received, and when they adopted the same provision, substantially, as a part of the new constitution, they must have intended that it should have the same meaning and operation which it had under the former. This conclusion would seem to be irresistible, for if any alteration had been desired or contemplated by them, on this subject, they would have made such a change iri the language they used as would have clearly indicated such an intention. Their omission to do this removes all doubt on this point, and conclusively demonstrates that their intention was, by retaining the same language which was used in the former constitution, to adhere to the practice which had so long and uniformly prevailed under it.

It is a well established rule of construction, the wisdom of which has been justified by experience, that when the meaning of any one provision of an Instrument is obscure, uncertain, or ambiguous, other parts of the same instrument may be resorted to, for its illustration, and for the purpose of explaining the ambiguity. If, then, the meaning of the section of the constitution in question were doubtful, we find other provisions in the same instrument, on kindred subjects, the consideration of which would have the effect of dispelling every doubt, and would clearly prove that the construction contended for, on the part of the plaintiff, is correct.

The constitution in prescribing the qualifications of members of the house of representatives, of senators, and even of the governor of the state, only requires that they shall be citizens of the United States at the time of their election. In other respects they are required to have higher qualifications than the electors. Would it not be a singular anomaly in the organization of a government, if the voter should not be qualified to exercise the right of suffrage, and yet would be qualified to be a member of the legislature, a senator, or the governor of the commonwealth? Can it be supposed, that the framers of the constitution intended to' bring about such a result? Should not such a construction, therefore, be put upon the language used, in defining the qualifications of a voter, as would avoid such an absurdity? Does not the language used in prescribing the qualifications of the persons to be elected, which is clear and explicit, and only requires that they shall be citizens of the United States, at the time they are elected, remove all doubt as to the true meaning of the language which prescribes a similar qualification, on the part of the electors?

The construction wre put upon this part of the constitution is therefore sustained by that which was given to a similar clause in the former constitution, and universally acquiesced in as being correct, as well as by the analogies which exist between this and other parts of the same instrument, and the reasons and conclusions deducible therefrom.

We are therefore unanimously of the opinion, upon the questions arising upon the demurrer, that the law was for the plaintiff, and that the circuit court erred in rendering a judgment for the defendant.

Wherefore, the judgment is reversed, and cause remanded with directions to overrule the demurrer to the plaintiff’s petition, and for further proceedings consistent with this opinion.