Freeman v. Selectmen & Town Clerk

Carpenter, J. We have no occasion to consider the question whether the respondents decided correctly upon the facts stated in the petition. The record presents this simple question : is it competent for the superior court by writ of mandamus to control the action of the board of registration in the matter of admitting electors ? The constitution, Art. 6th, sec. 5, provides that “ the selectmen, and town clerk, of the several towns, shall decide on the qualifications of electors, at such times and in such manner as may be prescribed by law.” The duties thus imposed upon these officers have been discharged by them, without any interference by the courts, for nearly half a century. The fact that a claim of this kind has never been made before, is a strong argument against the validity of the claim. The argument is materially strengthened by the entire absence of any provision, either in the constitution or laws, conferring power upon the courts, in any form of proceeding, to review the action of these boards. There is force also in the consideration that the legislature, by the laws enacted to carry into effect this provision of the constitution, has virtually put a construction upon it adverse to the claim of the petitioner. The time within which these duties are to be performed is limited, and necessarily so, to a few days. In most of the counties in the state no courts are then in session ; and if in session, the ordinary course of proceeding would hardly admit of a trial in season to be of any service to the party concerned. The members of the board would be liable to be called from their legitimate official duties and compelled to attend court, it might be at a long distance from home, at the suit of every one who should be refused the privilege of voting. Litigation would be largely increased; and there would be added to the excitement which sometimes attends our political campaigns the bitterness of feeling which always accompanies, to a greater or less extent, litigation in the courts. It cannot be that the framers of the constitution intended that it should be so construed as to lead to such results. But let us examine more carefully the nature of these [415] duties. The qualifications of electors are prescribed in the eighth and eleventh articles of the amendments to the constitution. Before an applicant can be admitted to the privileges of an elector, the board must find that he is a white male citizen of the United States ; that he has attained the age of twenty one years ; that he has resided in the state for a term of one year next preceding, and in the town in which he offers himself at least six mouths; that he sustains a good moral character, and is able to read any article of the constitution or any section of the statutes of this state. Most of these questions, in a majority of cases, must be determined upon testimony, and that testimony, when required, must be given under the sanction of an oath. When it is all before the board it should be weighed and each question determined according to the weight of testimony. Other questions will also arise. It is sometimes difficult to determine whether a man is a white man within the meaning of the constitution. What shall constitute residence, and what shall be the standard of good character ? These and like questions must be passed upon by the selectmen and town clerk. The constitution has made them the sole judges of their qualifications. Thus it will be seen that these duties are not merely ministerial ; and if they are not judicial, in the strict sense of the word, they certainly require the exercise of judgment and discretion; and it is inconsistent with the spirit of our free institutions that the exercise of such judgment and discretion should be controlled by any other persons. These officers are responsible to the people for their action, and, so long as they act fairly, they are, and ought to be, independent of all other control. If they act wantonly or maliciously, they may bo liable to the party injured, but not in this form of proceeding. Should a case arise in which we are called upon to decide any or all of these questions, we should not hesitate, if necessary, to differ from the opinion of the board of registration ; but we cannot, in this form of action, review their proceedings, or direct them how to decide in any given case. These views are believed to be in harmony with reported cases In Goddard v. Seymour, 80 Conn., 399, in speaking [416] of the duties of assessors and boards of relief, the court say: “ The law imposes upon these officers duties which they cannot possibly discharge to the satisfaction of all. Unfortunately the class of men who will if possible, by any means right or wrong, exempt their property from just taxation, is large. But it is enough for the present purpose to say, that the law has constituted these officers, and not judges of the superior court, the tribunal to determine the valuation' of taxable property.” In Kendall v. The United States, 12 Peters, 524, it was de~ cided that the Circuit Court of the district of Columbia has jurisdiction to issue a writ of mandamus to the Postmaster-General, to compel him to do a merely ministerial act, which the relator has a complete right, under an act of Congress, to have done by him and as to which he has no discretion. In Decatur v. Paulding, 14 Peters, 497, the Supreme Court of the United States decided that a writ of mandamus cannot be issued by the Circuit Court of the district of Columbia, to compel the Secretary of the Navy to perform an executive act, not merely ministerial, but involving the exercise of judgment. In that case the court say: “ If a suit should come before this court, which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.” In The United States v. Guthrie, 17 Howard, 304, the court say, “ that the only acts to which the power of the courts by [417] mandamus extends, are such as are purely ministerial, and with regard to which nothing like judgment or discretion, in the performance of his duties, is left to the officer; but that, wherever the right of judgment or decision exists in him, it is he, and not the courts, who can regulate its exercise.” There is no error in the judgment complained of. In this opinion the other judges concurred.