White v. Commissioners of Multnomah County

Waldo, C. J. This suit is brought to determine the constitutionality of the late act providing for the registration of voters. The constitution of Oregon (art. 2, sec. 2) provides: “In all elections not otherwise provided for by this constitution, every white male citizen of the United States of the age of twenty-one years and upwards who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth of the age- of twenty-one years and upwards who shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law.” — 320 — The counsel for the plaintiff pointed out in detail the extraordinary provisions of the law. The district attorney for the fifth judicial district, as a sample of the workings of the law, explained how he would be deprived of his vote by the mere fact of necessary absence from Clackamas County during the period of registration in attending to his official duties in .other counties in his district. We find it unnecessary, however, to enter into an examination of the details of the act, for it is met at the threshold by a fatal objection. As we construe the constitution, every law which requires previous registry as a prerequisite to the right to vote is ipso faato void. The legislature would, have the power by implication, had it- not been expressly conferred to prescribe the manner of regulating and conducting elections; but the right to vote itself has been placed beyond their interference or control. This fact seems to have been forgotten in framing the act. And how different apparently was the framers’ conception of the important nature of the right from that of Lord Holt, nearly 200 years ago, a judge who was never accused of being recreant to the liberties of Englishmen: “That a right which a man has to give his vote at the election of a person' to represent him in parliament, there to concur in the making of laws which are to him his liberty and property, is a most transcendent thing, and of a high nature.” (Ashby v. White, 2 Ld. Raym. 953.) If the attention were not permitted to wander beyond the act itself, the thought would hardly occur that the legislature were dealing with a right vested in the citizen by the constitution — a right of which “no department of the government, nor all of them combined,” said the court in State v. Adams, 2 Stew. 239, “have the power to divest an individual, otherwise than is prescribed by the constitution.” So in Brown v. Hummel, 6 Pa. St. 86, Coulter, J., said: “The — 321 — most important of all our franchises — the right of an elector and citizen — cannot, in a confined sense, he called property. It is not assets to pay debts, nor does it descend to the heir or administrator. But who does not feel its value, and who but would turn pale if he thought he could be deprived of it, without hearing or trial, by act of assembly?” Important, however, as the question may be, we approach its consideration without solicitude other than an anxiety to understand and declare the law of the land. That inveterate argument, the gravity of declaring an act of the legislature unconstitutional, was urged as usual in such cases. If, however, a law be unconstitutional, the gravity of not declaring it to be so is also worthy of consideration. Our constitutions are “written securities of liberty,” as Chief Justice Buffin has expressed it. That sound and able judge, Mr. Justice Campbell, of Michigan, well said in Sears v. Cottrell, 5 Mich. 283, that “every unconstitutional law which is made to stand creates a permanent and deadly evil by overturning the only safeguards we have against public usurpation.” The judiciary, as the guardians of the people’s constitutional liberties, must, in duty, observe that vigilance against constitutional encroachment which is said to be the price of liberty. The rules of law are beyond the control of those who are merely to decláre what the law is. In every case the gravity consists in ascertaining what the law is. A text of the famous Littleton has come down to us in the Year Books (Y. B. 6th ed. 4, 8, pl. 18): Le ley est tout un en griend et meind — “the law is all one, in great things and small.” The right to vote under the constitution is a vested constitutional right. “ When I say a right is vested, I mean that he has the power to do certain actions, or to possess certain things, according to the law of the land.” — 322 — (Chase, J., Colder v. Bull, 3 Dall. 394.) If the right be vested by the constitution, it denotes a right that cannot, under the constitution, be taken away. (Rich v. Flanders, 39 N. H. 385; Eakin v. Raub, 12 Serg. & R. 360.) It would seem that every case, from Capen v. Foster, 12 Pick. 485, S. C., 23 Am. Dec. 632, down, which has sustained against similar objections the constitutionality of a registry law which requires previous registry as a prerequisite to th§ right to vote, has taken it for granted that such laws were mere rules of procedure. It was assumed in Capen v. Foster, supra, that the right to make investigations into the qualifications of voters necessarily implies the right to compel the voter to furnish previous proof of his qualifications; that such a law was but “a reasonable and convenient regulation of the mode of exercising the right of voting.” It was placed on the same footing with a law which required the voter to offer his vote in writing.- Now, voting viva voce or by ballot is a pure rule of. procedure. So are laws regulating polling-places, and the times for opening and closing the polls. He who takes a check to a bank to cash it must indorse it. He who pays money is entitled to a receipt. This is procedure. But if a contract be to pay money on a fixed day, a subsequent law requiring the payee to-give ten days’ notice of the time and place of payment, or no obligation to pay shall arise, affects the substance of the contract, and is void. It is conceived that laws are of like nature which require previous registry in order to vote. Where the right is secured by the constitution, such laws, having merely a legislative sanction,, are void. The- true view of this question seems to he that stated in State v. Baker, 38 Wis. 86—that where registry is required as a prerequisite to the right to vote, such registry is a condition precedent to the right itself, and — 323 — therefore a rule or substantive law. This principle was subsequently practically applied in Dells v. Kennedy, 49 Id. 555, in which a registry law of Wisconsin was held to be void. It results as follows: A “right” has been defined by Mr. Justice Holmes to be the legal consequence which attaches to certain facts. (The Common Law, 214). Every fact which forms one of the group of facts of which the right is the legal consequence appertains to the substance of the right. The right to vote under the constitution may be defined to be a vested right in prsesenti, to be exercised in futuro, on a fixed day. When that day arrives, and the right is to be exercised, every fact essential to the existence of the right is a substantive fact. Previous registry,, in order to vote, is precisely such a fact. It is a condition precedent which must be performed, or when the day arrives no right will exist. Procedure ex vi termini appertains to the mode of enjoyment or enforcement of a right. No rule of procedure can operate anterior to the time when the right is to be enjoyed or enforced. It cannot have effect to determine a right before the right accrues. The distinction, therefore, sought to be drawn on this subject between what constitutes a qualification, and what, in contradistinction, is called a mode of proof of qualification, is unsubstantial. We may say of the attempted distinction, in the words of a chief justice of England centuries ago: “ Therefore we must take off this vail and cover of words, which make a show of something, and in truth are nothing.” “ Every definition of the qualification of voters,” said Mr. Drake, the author of the Law of Attachment, arguing in Blair v. Ridgely, 41 Mo. 163, “ is but a statement of the terms on which men may vote; and in every instance such definitions refer to what a party has done as well as to what he is. They say to the voter: £If you — 324 — have done certain things, you can vote.’ ” He who does not register is not qualified to vote, and hence is not a “ qualified elector ” — a phrase that is used five times in the constitution to signify those who are entitled to go to the polls on election day and legally vote. (See Byrne v. State, 12 Wis. 578; Sanford v. Prentice, 28 Id. 363.) But under this act, he who goes to the polls on election day, ■ possessing every constitutional qualification, may find that the legislature has stepped in between him and the constitution. He finds his vote denied because he has not done something which the legislature has required him to do. He discovers that he is not a qualified elector, and yet he is told that his omission to do the act,which had effect to disqualify him, is not itself a disqualification; or if he have performed the act, that his performance does not constitute a qualification. This will not square with the logic of facts. The distinction between what is substantive and what is modal is confounded. He who has a right to something to-morrow can never be secure of his right before to-morrow comes. If this can result, then the constitution does not mean what it says. McGafferty v. Guyer, 59 Pa. St. 111, very aptly says: “ Can the legislature, then, take away from an elector his right to vote while he possesses all the qualifications required by the constitution? This is the question now before us. ' When the citizen goes to the polls on election day with the constitution in his hand, and presents it as giving him a right to vote, can he be told: ‘True, you have every qualification that instrument requires; it declares you entitled to the right of an elector; but an act of assembly forbids your vote, and therefore it cannot be received.’ If so, the legislature is superior to the organic law of the state; and the legislature, instead of being controlled by it, may mold the constitution at their pleasure. Such is not the law.” — 325 — And so must we say in this case. Where a constitution provides, as does that of New York, “that laws shall be made for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage,” the power to pass a registry law seems fully implied. (See United States v. Quinn, 8 Blatchf. 59.) The case of State v. Butts, 31 Kan. 554, was grounded on a like constitutional clause. The difference between those cases and the present is the difference between a case where a power has been conferred and a case where it has not. So, on the other hand, a question can never arise under a constitution like that of Texas, which has declared in unequivocal terms that “no law shall ever be enacted requiring a registration of the voters of this state.” (See United States v. Slater, 4 Woods, 358.) The right of the plaintiff to maintain this suit is set at rest by the decision of this court in Carman v. Woodruff, 10 Or. 133. The opinion cites, with many other cases, Page v. Allen, 58 Pa. St. 338, which presented this very case. The decree must be reversed, and the court below directed to make the injunction perpetual. Lord, J. Tested by the rule laid down in Capen v. Foster, supra, the features of the act objected to are in conflict with the provision of our constitution conferring the right of suffrage. Whether these objectionable features could be obviated by further legislation, it is not necessary now to decide. It is sufficient to say that the act as enacted cannot be sustained as to that part excepted to.