Imagens das páginas
PDF
ePub

continuous intention to return, will not deprive one of his residence, even though it extend through a series of years.1

[* 601] *Conditions to the Exercise of the Elective Franchise.

While it is true that the legislature cannot add to the constitutional qualifications of electors, it must nevertheless devolve upon that body to establish such regulations as will enable all persons

other place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicile of origin, although he may return only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means acquire a domicile elsewhere, he retains his domicile of origin." Shaw, Ch. J., Thorndike v. City of Boston, 1 Met. 245. And see Alston v. Newcomer, 42 Miss. 186. In Inhabitants of Abington v. Inhabitants of North Bridgewater, 23 Pick. 170, it appeared that a town line ran through the house occupied by a party, leaving a portion on one side sufficient to form a habitation, and a portion on the other not sufficient for that purpose. Held, that the domicile must be deemed to be on the side first mentioned. It was intimated also that where a house was thus divided, and the party slept habitually on one side, that circumstance should be regarded as a preponderating one to fix his residence there, in the absence of other proof. And see Rex v. St. Olave's, 1 Strange, 51.

By the constitutions of several of the States, it is provided, in substance, that no person shall be deemed to have gained or lost a residence by reason of his presence or absence, while employed in the service of the United States; nor while a student in any seminary of learning; nor while kept at any almshouse or asylum at

public expense; nor while confined in any public prison. See Const. of New York, Illinois, Indiana, California, Michigan, Rhode Island, Minnesota, Missouri, Nevada, Oregon, and Wisconsin. In several of the other States there are provisions covering some of these cases, but not all. A provision that no person shall be deemed to have gained or lost a residence by reason of his presence or absence in the service of the United States, does not preclude one from acquiring a residence in the place where, and in the time while, he is present in such service. People v. Holden, 28 Cal. 123. If a man takes up his permanent abode at the place of an institution of learning, the fact of his entering it as a student will not preclude his acquiring a legal residence there; but if he is domiciled at the place for the purposes of instruction only, it is deemed proper and right that he should neither lose his former residence nor gain a new one in consequence thereof.

That persons residing upon lands within a State, but set apart for some national purpose, and subjected to the exclusive jurisdiction of the United States, are not voters, see Opinions of Judges, 1 Met. 580; Sinks v. Reese, 19 Ohio, N. s. 306; McCrary, Law of Elections, § 29.

1 Harbaugh v. Cicotte, 33 Mich. 241; Fry's Election Case, 71 Penn. St. 302.

entitled to the privilege to exercise it freely and securely, and exclude all who are not entitled from improper participation therein. For this purpose the times of holding elections, the manner of conducting them and of ascertaining the result, are prescribed, and heavy penalties are imposed upon those who shall vote illegally, or instigate others to do so, or who shall attempt to preclude a fair election or to falsify the result. The propriety, and indeed the necessity, of such regulations are undisputed. In some of the States it has also been regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. Under such a regulation, the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions concerning the right of individuals to exercise this important franchise. Electors, also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whether the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has sometimes been claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconstitutional and void, as adding another test to the qualifications of electors which the constitution* has prescribed, [* 602] and as having the effect, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fundamental law. This position, however, has not been generally accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.2

1 See Page v. Allen, 58 Penn. St. 338. The Supreme Court of Pennsylvania held the contrary in Patterson v. Barlow, 60 Penn. St. 51, which case is in harmony with those cited in

the next note.

2 Capen v. Foster, 12 Pick. 485; People v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425; State v. Hilmantel, 21 Wis. 566; State v. Baker, 38 Wis. 71; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28

Such regulations must always have been within the power of the legislature, unless forbidden. Many resting upon the same principle are always prescribed, and have never been supposed to be open to objection. Although the constitution provides that all male citizens twenty-one years of age and upwards shall be entitled to vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the constitution, because prescribing an additional qualification, namely, the presence of the elector at the polls. All such reasonable regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballotbox, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential. And where the law requires such a registry, and forbids the reception of votes from any persons not registered, an election in a township where no such registry has ever been made will be void, and cannot be sustained by making proof that none in fact but duly qualified electors have voted. It is no answer that such a rule may enable the registry officers, by neglecting their duty, to disfranchise the electors altogether; the remedy of the electors is by proceedings to compel the performance of the duty; and the statute, being imperative and mandatory, cannot be disregarded.1 The danger, however, of any such misconduct on the part of officers is comparatively small, when the duty is intrusted to those who are chosen in the locality where the registry is to be made, and who are consequently immediately responsible to those who are interested in being registered. All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their

Iowa, 270; Ensworth v. Albin, 46 Mo. 450. As to the conclusiveness of the registry, see Hyde v. Brush, 34 Conn.

454.

1 People v. Kopplekom, 16 Mich. 342; Zeiler v. Chapman, 54 Mo. 502; Nefzger v. Davenport, &c. R. R. Co., 36 Iowa, 642. The law does not become unconstitutional, because of the fact that, by the neglect of the officers

to attend to the registry, voters may be disfranchised. Ibid. Ensworth v. Albin, 46 Mo. 450. But informalities in a registry will not vitiate it, and canvassers cannot reject votes because of them. State v. Baker, 38 Wis. 71. That a board of registration has judicial functions, see Fansler r. Parsons, 6 W. Va. 486; s. c. 20 Am. Rep. 431.

purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do, they must be declared void.1

In some other cases preliminary action by the public authorities. may be requisite before any legal election can be held. If an election is one which a municipality may hold or [* 603] not at its option, and the proper municipal authority de

cides against holding it, it is evident that individual citizens must acquiesce, and that any votes which may be cast by them on the assumption of right must be altogether nugatory.2 The same would be true of an election to be held after proclamation for that purpose, and which must fail if no such proclamation has been made. Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity; but the right to hold the election comes from the statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office, which the law requires shall be filled at the next general election, the time and place of which

1 Capen v. Foster, 12 Pick. 488; Monroe v. Collins, 17 Ohio, N. s. 665. Under the Constitution of Ohio, the right of suffrage is guaranteed to "white male citizens;" and by a long series of decisions it was settled that persons having a preponderance of white blood were "white" within its meaning. It was also settled that judges of election were liable to an action for refusing to receive the vote of a qualified elector. A legislature unfriendly to the construction of the constitution above stated passed an act which, while prescribing penalties against judges of election who should refuse to receive or sanction the rejection of a ballot from any person, knowing him to have the qualifications of an elector, concluded with a proviso that the act and the penal

ties thereto "shall not apply to clerks or judges of election for refusing to receive the votes of persons having a distinct and visible admixture of African blood, nor shall they be liable to damages by reason of such rejection." Other provisions of the act plainly discriminated against the class of voters mentioned, and it was held to be clearly unreasonable, partial, calculated to subvert or impede the exercise of the right of suffrage by this class, and therefore void. Monroe v. Collins, supra.

2 Opinions of Judges, 7 Mass. 525; Opinions of Judges, 15 Mass. 537.

People v. Porter, 6 Cal. 26; McKune v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; Jones v. State, 1 Kan. 273; Barry v. Lauck, 5 Cold. 588.

are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given; and such election cannot be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it.1 But this would not be the case if either the time or the place were not fixed by law, so that notice became essential for that purpose.2

[* 604]

* The Manner of Exercising the Right.

The mode of voting in this country, at all general elections, is almost universally by ballot. "A ballot may be defined to be a

1 People v. Cowles, 13 N. Y. 350; People v. Brenahm, 3 Cal. 477; State v. Jones, 19 Ind. 356; People v. Hartwell, 12 Mich. 508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Wis. 363. The case of Foster v. Scarff, 15 Ohio, N. s. 532, would seem to be contra. A general election was to be held, at which by law an existing vacancy in the office of Judge of Probate was required to be filled. The sheriff, however, omitted all mention of this office in his notice of election, and the voters generally were not aware that a vacancy was to be filled. Nominations were made for the other offices, but none for this, but a candidate presented himself for whom less than a fourth of the voters taking part in the election cast ballots. It was held that the election to fill the vacancy was void.

2 State v. Young, 4 Iowa, 561. An act had been passed for the incorporation of the city of Washington, and by its terms it was to be submitted to the people on the 16th of the following February, for their acceptance or rejection, at an election to be called and holden in the same manner as township elections under the general law. The time of notice for the regular township elections was, by law, to be determined by the

trustees, but for the first township meeting fifteen days' notice was made requisite An election was holden, assumed to be under the act in question; but no notice was given of it, except by the circulation, on the morning of the election, of an extra newspaper containing a notice that an election would be held on that day at a specified place. It was held that the election was void. The act contemplated some notice before any legal vote could be taken, and that which was given could not be considered any notice at all. This case differs from all of those above cited, where vacancies were to be filled at a general election, and where the law itself would give to the electors all the information which was requisite. In this case, although the time was fixed, the place was not; and, if a notice thus circulated on the morning of election could be held sufficient, it might well happen that the electors generally would fail to be informed, so that their right to vote might be exercised. See also Barry v. Lauck, 5 Cold. 588. That where the law provides for holding an election and one is duly called, equity has no authority to enjoin it, see Walton r. Develing, 61 Ill. 201.

The ballot was also adopted in England in 1872.

« AnteriorContinuar »