State ex rel. Chandler v. Main

16 Wis. 398

• Court: Wisconsin Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court,

Paine, J.

At the special session of the legislature in 1862, a law was passed allowing the qualified electors of this state, who should be acting as volunteer soldiers in the service of the United States, to vote at the general fall elections. The law provided in detail the mode in which such votes should be taken, returned and canvassed, and that they might be given at whatever places such soldiers should be located at the time, whether within or without this state.

At the election last fall, the relator received a majority of the votes cast in this county for the office of sheriff, exclusive of the votes of soldiers; but the latter changed the result, and if properly counted, elected the respondent, who received the certificate and entered upon the duties of the office. This is a proceeding by quo warranto, by which the relator seeks to obtain possession of the office, and the only question presented, is as to the validity of the law authorizing the soldiers to vote. If that was valid, the relator must fail; if void, be must succeed. He claims it to be unconstitutional. But with the exception of one clause, which will be hereafter specially noticed, it is conceded that there is no provision of the constitution which attempts to prescribe where the right of suffrage shall be- exercised, ór to prohibit the legislature from authorizing it to be' done outside of the limits of this state. The place of voting was left by the constitution to be regulated by law. But even assuming this, the counsel for the relator still contends that an implied prohibition should be derived from the nature and scope' of the constitution itself, and the general principle that the constitution and laws of a country can have ho force beyond its territorial limits. This is undoubtedly, a well established general principle, applicable to all governments. And if this principle is- applicable to the law in question, and the latter cannot be brought within any of the recognized qualifications of the former, the act must fail. Thus, if the legislature of this state should pass a law imposing duties upon the citizens of Illinois, it would be void, and it would be so, although there is no clause in our constitution prohibiting, the passage of such a law. It would be void by reason of the general-principle referred to, and because it would be outside of the scope of the legislative power of this state. It might he said to be unconstitutional, although not prohibited, for the reason that the constitution delegated to the legislature only such legislative power as might exist in this state. Therefore, an act legislating for Illinois would be outside of the limits of that power, and might be said to be unconstitutional, just as it has been said that a law attempting to taire the property of one man and give it to another, was unconstitutional, though not prohibited, because such an act was not within the scope of the legislative power.

But this principle has certain well defined and universally recognized qualifications. [And although it is true as a general proposition, that the laws of a state have no force outside of its territorial limits,, it is equally true that every state may, in the regulation of its own internal affairs, authorize certain acts to be done outside of its limits, and prescribe what effect they shall have within them. Thus it pertains to every state to prescribe in what manner title to real estate within it shall be transferred. Each state accordingly, provides the. mode in which conveyances of land may be executed in other states, and when so executed gives to them within its limits, the effect of making a legal transfer of the title.^ And to facilitate this object, it is usual for each state to authorize the appointment in other states of commissioners of deeds, who have authority to take acknowledgments and do other acts in pursuance of the laws of the state for which they are appointed. And that state gives to these acts when so done whatever effect it pleases within its own borders. We have such a law in chapter 88 of the Revised Statutes, and probably there it no state in this country which has not a similar one. Each state also prescribes the mode in which wills may be executed in other states in order to dispose of real and personal property within it, and in what manner depositions may be take in other states and countries, to be used as evidence in its courts.!.

This class of legislation has been universally recognized as valid for the reason, that although it authorizes acts to be done outside of the country where it is enacted, and specifies in what manner they may be done, still the acts themselves relate to the regulation of the internal affairs of the state over which it has acknowleged jurisdiction, and has no tendency to interfere with the sovereignty of other states in which they may be performed. The act authorized to be done by the law in question, seems to be purely of this character. It is the expression of the will of an elector of this state, in regard to an office to be held and exercised here. It is an-act that relates as entirely to the internal concerns of this state, and is as free from all tendency to interfere with the sovereignty or jurisdiction of any other state where the ballots might happen to be cast, as are any of the acts authorized by the legislature just referred to. This state has the acknowledge power of providing in what manner title to the soil here, may be transferred. It provides a mode by which it may be done in other states, and if so done the transfer is valid. It has equal authority to provide the jnode in which the elector shall cast his ballot. It provides that he may do it in another state. If so done, why is the act not equally valid with the other ? I can see no distinction in principle between them, so far as relates to the power of the state to authorize them to be done outside of its territorial jurisdiction. Or rather, if there is any distinction, it is in favor of the law authorizing the ballot, for that is a matter entirely between the state and its own citizens. While the legislation before referred to, provides the mode in which the citizens of other states as well as our own must transfer their title to our soil by deed or will, it also provides'for conferring authority on the citizens of other states, as commissioners of deeds and commissioners to take testimony, who are usually residents and citizens of the other states in which they are appointed. But the power of a state over its own citizens stands upon a still stronger ground, and it may, as we shall hereafter see,not only pass permissive laws in respect to them when beyond its limits, but also laws which are binding and obligatory upon them everywhere, and for the violation of which they may be punished whenever the state can find them within its jurisdiction. If therefore, the state may provide in what manner the' citizens of other states may express their will in those states, in regard to the disposition of property here, still more clearly may it provide how its own citizens in other states may express their will in regard to the disposition of an office here.

Having arrived then at the conclusion, that the law in question cannot be held invalid, as being outside of the scope of legitimate legislation by this state, it remains to inquire, whether it is prohibited by the constitution. For it is not necessary to inquire after any other grant of power than the general grant of the legislative power. It being within the scope of the legislative power, it is competent for the legislature to enact it unless prohibited. This rule «with respect to the state legislatures is too well settled to need a reference to authorities.

And it is not enough to say that the framers of the constitution never contemplated or “ dreamed'of” a law, authorizing a ballot to be cast outside of the state. That may be conceded, but no prohibition can be implied from it. The legislative power may undoubtedly do many things in the progress of society that the framers of the constitutition never thought of It is not enough to say that such laws are unusual and have never been passed before. This must be admitted; but no case can be found where such, facts have been held to amount to a prohibition upon legislative-action. On the contrary, the rule is well settled, as stated by the supreme court of Michigan in Tyler vs. The People, 8 Mich., 333, “that to warrant us in declaring a statute unconstitutional, we should be able to lay our finger on the part of the constitution violated, and that the infraction should be clear and free from a reasonable doubt.”

It has already been said, that with one exception, no clause of the constitution was relied on as amounting to a prohibition. That exception related to sec. 5, article 13, which is as follows: “ All persons residing upon Indian lands within any county of the state, and qualified to exercise the right of suffrage under this constitution, shall be entitled to vote at the polls which may be held nearest their residence, for state, United States or county officers; provided, that no person shall vote for county officers out of the county in which he resides.” What is the meaning of this proviso ? Did it mean to prohibit any voter from ever being allowed to cast his ballot outside of the county in which he resided, though voting for officers of such county ; or did it mean only to prohibit any voter from voting for the county officers of a county in which he did not reside ? It seems to me obviously the latter. In the first place, if the framers had intended to enact any general provision, confining the right of voting to any particulary place, it would naturally have been inserted as a distinct provision in connection with the article on suffrage. But there is nothing of the kind. No attempt was made to provide anything upon the subject, until they came to consider a very small class of inhabitants of the state, the settlers on the Indian lands. For their convenience .the section above referred to, gave them the right to vote at .the nearest polls to their residence, for state, United States and county officers. But the nearest polls might sometimes be in another county; and the general right granted in the section having authorized the voters to vote for “county officers,” if unrestricted it could have been claimed that he could vote for county officers although voting in -a county in which he did not reside. Hence, the necessity for the proviso. But what .county officers did the framers understand would be voted for, in such a case, if there was no restriction ? Did they assume that the voter would vote for the county officers of his own county, and adopt the proviso for the purpose of preventing it? Obviously not. If they had understood it to be practicable for him to vote for the county officers of his own .county, at the polls in another, they clearly would not have prohibited it at all. The same reasons which induced them to allow him to vote for any officers at polls in another county would have Led .them then .to allow him to vote there also, for the county offi* .cers of his own county, provided they had understood it to be practicable. But they evidently assumed that it was not practicable ; not because in the nature of things it would be impossible to provide a mode in which it might be accomplished, but because without some extraordinary provisions of law relating expressly to such votes, it would be wholly impracticable to vote at. the general pjolls in one county for the county officers of another. For this reason, the prohibition of such voting was not the idea in the minds of the framers in enacting the proviso. What then was it ? Clearly to prevent him in such a case from voting for the county officers of the county where he voted, but in which he did not reside. Without the proviso, this right might have been claimed by him. This would have been obviously improper. It would be contrary to the general policy and spirit of our laws to allow the residents of one county to have’ a voice in deciding who should be the county officers in another. To prevent it was the sole idea and object of this proviso. The words out of the county in which he resides,” refer to the officers to be voted for, not to the act of voting. Its meaning, was not that no person should ever be allowed to vote out of the county in which he resided for the officers of that county, but that no person should ever be allowed to vote anywhere, for the officers of a county in which he did not reside. Such being its true and only meaning, it furnishes no prohibition against the law in question.

In sec. 11, art. 14, is the following provision : “ The several elections provided for in this article shall be conducted according to the existing laws of the territory; provided, that no elector shall be entitled to vote except in the town, ward or precinct where he resides.” This was referred to upon the argument, but it was hardly claimed to have any direct application to the question. By its express terms, it applies only to the elections provided for in the schedule, which were the first elections to accomplish the organization of the state government. It might just as well be said, that it required all elections under the constitution to be forever Conducted according to the then existing laws of the territory, as to say that it had the effect of making the proviso applicable to any election, other than those provided for in that article. It was temporary in its character, and when these first elections had been held, its function was ended. The only bearing it can have on the question under consideration is, that it serves to show that the framers did not intend to make any such restriction as to the place of voting, one of the permanent provisions of the constitution. Where they intended it to exist, as in the temporary provisions of the schedule, they expressed it in clear and positive terms. In those provisions that were designed to be permanent, they made no attempt to express it, hence they in - tended to leave tbe legislature unrestricted, to provide in indiscretion where tbe right of suffrage might he exercised.

The counsel for the relator relied upon the uniform practice hitherto, and claimed that it amounted to a practical exposition of the constitution against the validity of a law lite the one in question. But that position cannot be sustained. If an act may be accomplished in several different modes, the fact that the legislature, for a given time uniformly provides for only one mode, does not at all imply that in their opinion they could not have provided any other. The argument from practical exposition in such a ease, would go only to sustain the validity of the mode provided, not to deny the validity of any other. In the case of Chase vs. Miller, reported in the American Law Register for .January, 1888, the supreme court of Pennsylvania held the law of that state authorizing its soldiers to vote outside of its limits unconstitutional. But the decision is based upon an express provision of their constitution, requiring a residence by the voter “ in the election district where he offers to vote, ten days immediately preceding such election," &c. Their law did not organize any “election districts ” outside of the state, and for that reason the court held it void. Whether they could have done that or not, the court did not attempt to determine. We have no such clause in onr constitution, and the decision is therefore inapplicable here. I conclude therefore, that there is nothing in the constitution which amounts to a prohibition of this law.

But the counsel for the relator contends, that if it is possible for the legislature to authorize any elector to cast his ballot out of the state, then this law is void because it is confined to soldiers and does not provide that all electors who were absent from the state might vote. This conclusion was based upon the assumption that not to provide that they might vote out of the state, if it could possibly be done, amounted to a disfranchisement of such elector. But this is clearly untenable. So long as electors are at liberty to vote at their places of residence, they cannot be said to be disfranchised, because the legislature does not provide that they may vote elsewhere. And if the legislature does see fit to provide upon special reasons, that a certain class may vote elsewhere, those not belonging to that class have no ground of complaint. They may still exercise the right at home, if they choose to stay. The right of suffrage is given by the constitution and the elector cannot be deprived of it. But the legislature may provide where it shall be exercised. And no elector can claim to be deprived of it, because not allowed to exercise it at the same place where some others are allowed to do so.

But the counsel for the relator raises another objection to the law. He claims, that although the legislature may have the power to authorize the votes to be given outside of the state, still it has no power to punish any one for an offence committed outside, and therefore the seventeenth section, which provides for the punishment of persons voting illegally at such elections must fail. And he then claims, that the law falls within a principle which has been frequently recognized by this court, that when an act is passed containing some provisions which might be valid and others which are void, and those which are void were designed as compensations for, or qualifications of the others, so that the court can say, upon looking at the whole statute, that the legislature would not have passed the valid parts, except upon the supposition that the void parts could be enforced also, the whole act must fail.

If it could be held that the provision for the punishment of illegal voting was invalid, it would present a very serious question whether this principle was not applicable to this law. But we are not prepared to say that that provision is invalid. On the contrary, it seems to be well established, that every nation has the right to punish its own citizens for the violation of its laws wherever committed. This right is based upon the duty of allegiance, and it does not rest upon the assumption that one state can extend its laws into another, so as to make them directly operative there, or impose any obligation on such other state to observe them or give any effect to them; but merely that they may be personally binding upon the citizen of the state which enacts them, and justify his punishment for their violation by such state, when he returns within its limits. Story’s Conflict of Laws, §§21, 540; Wheat. Int. Law, p.,182, 169, 176. This doctrine is thus stated in The People vs. Tyler, 7 Mich., 221, by Christiancy, J. “ But the general principle that the laws of a country cannot render an act criminal, when committed beyond its limits, is -subject to some qualifications or exceptions. Thus, every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish, as crimes, certain acts which are peculiarly injurious to its rig fits or interests, or those of its citizens, wherever committed; at least if committed by a citizen or subject of such sovereignty. * * * * But though crimes in general thus become injurious to the sovereignty oaly when committed within its territory, there are exceptional cases standing upon peculiar grounds as already intimated. Thus (without attempting to enumerate all) the citizen may commit treason by acts or combinations abroad, the commerce of a nation may be injured, or its pacific relations with other governments endangered by the criminal conduct of the passengers and crews of its ships in foreign ports. In such cases the offender may be punished by the government of which he is a citizen, with this qualification, that he be afterwards found within the territory or jurisdiction of the latter, or be brought there without a violation of the rights of the sovereignty within which the act was committed ; for he cannot be arrested there without the consent of the latter.”

In Adams vs. The People, 1 Coms., 178, Judge Bronson recognized the rule as follows: “ It does not occur to me that there are more than two cases where the question of allegiance can have any' thing to do with a criminal prosecution. First, when the accused is charged with a breach of the duty of allegiance, as in cases of treason; and second, when the government proposes to punish offenses committed by its own citizens, beyond the territorial limits of the state.”

The absolute necessity of this power, with respect at least to the crime of treason, seems very clear. If the citizen could pass beyond the limits of his country, and there adhere to its enemies and wage war against his country, and afterwards return into it and laugh to scorn its power of punishment, because the offense was committed outside of it, the power of every nation to defend itself against treachery would be seriously impaired. The necessity of it is also quite apparent, with respect to many other offenses. As for example, where a state sends its agents abroad to negotiate its bonds, or for any other similar purpose ; should it not have power to protect itself against an abuse of authority by embezzlement or otherwise ? Such considerations show the necessity of the power, and it is recognized and practiced, upon by all nations. And if the power exists at all, the case of illegal voting abroad is clearly within it. . For it is purely a question between the state and its own citizens, and the act is one which would probably constitute no offence whatever against the laws of the state where committed.

But notwithstanding the existence of this right is recognized by the general principles of law, applicable to nations, there may be some room for doubt as to how it would be affected by the provision in our constitution, that the accused shall be entitled “in prosecutions' by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law.” This provision clearly refers only to such crimes as are committed within the state. Can it be held to imply a prohibition against the punishment of any other offenses. I am unable to see that it does. Full effect is given to it by allowing it to control in the trial of all offenses committed within the state. Its enactment does not imply or assume that it was impossible to punisb any offenses not committed in any county or district in the state. It is silent on that subject, and it is not inconsistent with the power to inflict such punishment. If such a power existed by the general principles of law applicable to nations, the enactment oi a general provision regarding crimes committed within the state, saying nothing about others, ought not to be held an abdication of it.

I am unable to say, therefore, that the provisions of this law providing for the pnnishment of illegal voting under it, might not be enforced against the citizens of this state, who should violate it abroad, if they should afterwards be found here.

Possibly further legislation may be necessary, providing more particularly as to the mode of trial and what court shoul i have jurisdiction. But if so, that may still be enacted, and the want of it does not affect the validity of the provision already adopted, establishing the offense and the liablity to punishment. If the citizens of other states should violate it, perhaps it could not be enforced against them, even though they should come here. But conceding that it could not, I should not for that reason, hold the law invalid. The military organization of companies, affords a security equal and perhaps superior to that of a registry law, against any illegal voting by citizens of other states. The probability of any successful attempt on their part, to vote under the law, was too slight to warrant the assumption, that the legislature would not have passed it, except upon the supposition that they had power to punish citizens of other states who might violate it.

I must therefore hold this law to be valid. I have examined only as to the power of the legislature to pass it. If the power exists, the policy and expediency of it are for the legislature, and not the courts to determine. Upon this question, whatever arguments may be urged against the policy of such a law, there are also certainly very strong considerations in its favor, as adapted to tbe preseat extraordinary condition of affairs, when more than forty thousand of tbe citizens of this state have left it in the service of their country. But whatever else may be said upon the subject, this at least is true, that history has furnished no better example, illustrating the capacity of the people for self-government, than that furnished under this law, of the citizen soldiers pausing amid the horrors of war, to discharge their duties as the primary legislators of the republic, and to guard by an intelligent use of their ballots, to be forwarded to their homes, the welfare of their country, and those principles of civil liberty, for which they are ready, at any moment, to lay down their lives upon the field of battle.

Judgment must be entered in favor of the respondent