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ture to exercise the acknowledged power to abolish courts not established by the constitution, and that the act in question is, therefore, valid.

While we thus differ as to the method of reaching the result, we are all of the opinion that the legislation, challenged by this appeal, is not in violation of the constitution, and that the judgment should be affirmed. All concur.

Judgment affirmed. The power to abolish a municipal office is possessed by the corporate authority which by law has the power to establish the office, Augusta v. Sweeney, 44 Ga. 463. An office not being a contract, Attorney General v. Jochim, 99 Mich. 358, infra, the legislature may shorten its term, Butler v. Pennsylvania, 10 How. U. S. 402, supra; increase its duties without increasing its emoluments, or diminish its emoluments during the term of an incumbent, Taft v. Adams, 3 Gray, 126; People v. Devlin, 33 N. Y. 269; State v. Douglass, 26 Wis. 428.

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1. The right to vote.


Supreme Judicial Court of Massachusetts. May, 1888.

144 Mass. 497.

DEVENS, J. The case at bar is an action of tort against the registrars of voters in the city of Cambridge to recover damages for wrongfully refusing, as the plaintiff alleges, to register him as a voter for the state election of 1886.

The case raises but a single question, although one of much importance. The defendants refused to register the plaintiff because he had been naturalized thirty days previously to his application for registration. They were fully justified in so doing, under the St. of 1885, c. 345, Sec. 7, if the provisions of this section are constitutional. This section enacts that "no person hereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such naturalization."

By naturalization, the plaintiff became eo instanti a citizen of the United States, and therefore a citizen of the

state of his residence.

The right or privilege of voting is a right or privilege arising under the constitution of each state, and not under the Constitution of the United States. The voter is entitled to vote in the election of officers of the United States by reason of the fact that he is a voter in the state in which he resides. He exercises this right because he is entitled to by the laws of the state where he offers to exercise it, and not because he is a citizen of the United States. United States v. Anthony, 11 Blatchf. 200.

The qualifications of voters are fixed by State legislation. The requisitions as to ownership of property, citizenship, sex and


residence, in connection with the right of voting, vary with the constitutions or laws of the several states. However, unwise, unjust, or even tyrannical its regulations may be or seem to be in this regard, the right of each State to define the qualifications of its voters is complete and perfect, so far as it is controlled by the fifteenth article of the Amendments of the Constitution of the United States, which provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color or previous condition of servitude.''

The question whether Sec. 7 of the St. of 1885, c. 345, is constitutional, must be decided by determining whether this legislation is in conformity with the constitution of this commonwealth or whether it adds anything to the qualifications which the voter is thereby required to possess, and thus interferes with the enjoyment of the rights with which this Constitution invests him.

The third article of the Amendments of the Constitution of Massachusetts, adopted in 1821, is as follows: “Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the commonwealth one year, and within the town or district, in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant-governor, senators, or representatives, and who shall have paid, by himself, or his parent, master, or guardian, any state or county tax, which shall, within two years next preceding such election, have been assessed upon him, in any town or district of this Commonwealth; and also, every citizen who shall be, in all other respects, qualified as above mentioned, shall have a right to vote in such election of governor, lieutenantgovernor, senators and representatives; and no other person shall be entitled to vote in such elections.'

A reading and writing qualification was established in 1857, by article 20 of the Amendments of the Constitution. But this it will not be necessary to consider in the present discussion.

The qualifications of voters are thus defined with clearness and precision; without the possession of these, the citizen or inhabitant cannot exercise the privilege of voting, and as whoever possesses them is by the Constitution entitled to this privilege, legislation cannot deprive him of it. By the Constitution, c. 1, sec. 1, art. 4,

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'In the territories Congress determines who shall vote. Murphy v. Ramsay, 114 U. S. 15, 44.

full power and authority are given to the General Court “from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof." To the provisions of the Constitution all legislation is thus made subordinate, and it cannot add to nor diminish the qualifications of a voter which that instrument has prescribed. Blanchard v. Stearns, 5 Met. 298, 301; Williams v. Whiting, 11 Mass. 424, 433.

The plaintiff according to the allegations of his declaration possessed, when he offered himself for registration, all the qualifications of a voter required by the Constitution. Any legislation by which the exercise of his rights is postponed diminishes them, and must be unconstitutional, unless it can be defended on the ground that it is reasonable and necessary, in order that the rights of the proposed voter may be ascertained and proved, and thus the rights of others (which are to be protected as well as his own) guarded against the danger of illegal voting.

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The plaintiff in the case at bar does not contend that the legislature has not the right to make any reasonable, uniform, and impartial regulation of the mode of exercising the right of suffrage, and also of ascertaining the qualifications of voters. He denies that section 7 of the statute under discussion is of this character.

If section 7 of the St. of 1885, c. 345, were general in terms, and allowed no person to register as a voter until he had possessed the requisite qualifications for a period of thirty days, it would be difficult to maintain its constitutionality. It would still provide for adding another qualification to those required by the Constitution, as much as if the period of domicil within the town or the Commonwealth, required by the constitution before voting, were extended to a longer period. State v. Williams, 5 Wis. 308; Quinn V. State, 35 Ind. 485.

But serious as these objections would be to the constitutionality of a general law applicable to all classes of citizens, it is not necessary now to consider them, as the section of the statute in question presents a difficulty even more serious. It undertakes to prevent a single class of citizens, namely, those who are naturalized, possessing all the qualifications established by the constitution of the Commonwealth, from exercising the right with which the constitution invests them, for a period of thirty days, by forbidding the registrars of voters to register them during that period. All citizens must stand equal before the law, and the statute, assuming them to be citizens, imposes this prohibition upon them as citizens of a specified class. A statute regulating the exercise of the right of suffrage, or the ascertainment of the qualifications of voters, must not only be reasonable in its character, but uniform and impartial in its application. If it were possible to impose a period of probation upon all qualified citizens before they were entitled to exercise the privilege, it certainly is not possible under the constitution to select a single class and impose it on this class alone.


It was suggested at the argument, that the section of the statute here in question might be upheld as a reasonable regulation to protect the public from possible fraud in obtaining certificates of naturalization, and that the delay of thirty days before naturalized citizens are permitted to register allows this investigation. But the board of registrars is not competent to pass upon the question whether a certificate of naturalization was erroneously granted, nor can such a certificate be thus attacked before them collaterally. The only question upon this part of their inquiry into the qualifications of the applicant is whether he is in fact the person named in the certificate he produces, if such certificate be itself properly authenticated. It is a question of identity solely.

No argument in favor of the constitutionality of the section can be founded upon any peculiarity in the situation of naturalized citizens, which renders an inquiry in regard to their qualifications different from similar inquiries when applied to all other citizens. The regulation which it assumes to make is partial, and calculated injuriously to restrain and impede, in the exercise of its rights, the class to which it applies, in that it denies to this class, for the period of thirty days, the exercise of a right which the constitution has conferred upon it. There is no warrant for this within the just and constitutional limits of the legislative power,

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