State ex rel. Breckenridge v. Cook

Wagner, Judge, delivered the opinion of the court. The relator asks for a mandamus from this court to compel the registering officer of Union election district, in Washington county, to permit him to register. He states in his petition, substantially, that he is a duty qualified voter, and that he took and subscribed the oath of loyalty previous to the regular election in November, 1866, and was regularly registered as a voter, but that the court of appeals, composed of the supervisors of registration, threw out the vote of the entire election district in which he was registered, on the ground that the officer making the registration was disqualified to act; that he has made application to again register, in order that he may be entitled to vote at the special election for member of Congress in his district at the ensuing election ordered by the Governor of the State, but that the registering officer has refused to permit him to register. The Attorney-General has filed a demurrer to the petition, and for objection states that the allegations fail to show that the petitioner has become a qualified voter since the general registry had in 1866, but on the contrary shows that he was a qualified voter at the time said registry was had. [597] The decision of the whole case rests upon the 18th section of the law relating to registration. That section provides that for the purpose of keeping the list of qualified voters complete, the clerk of the County Court shall, fifteen days before any special election, cause to be delivered to the officer of registration of each election district the books of registration returned by said officer of registration, who shall immediately proceed to register the names of such persons as have become qualified voters after the closing of the registry, unless it appears that such person was restricted because sufficient time had not elapsed for his becoming a qualified voter, and that since such rejection sufficient time had elapsed. There is no provision whatever made for registering any persons, except such as have qualified since the closing of the last general registry. A person, therefore, who was duly entitled to registration and failed from any cause to be registered, cannot avail himself of the privilege when the lists are being completed in view of a special election. It seems that the law makes no provision, in case where the books are destroyed or they have been rendered ineffective for any reason, for making the registration anew. No new registry can be had till the next biennial election. There is undoubtedly a palpable defect in the law, a clear casus omissus; but this court cannot be appealed to, to amend and perfect laws by judicial legislation. This very case is one of great hardship and deprivation. Here is a citizen who fought in the armies of the country to preserve the government, who is a qualified voter according to law, and who has faithfully complied with all the prescribed forms of registration, and yet he is denied his privilege of exercising the elective franchise because the court of appeals and revision pronounced the book in which he was registered a nullity, and the law has failed to allow a new registration in such an instance. But it is better that he should be deprived of a right temporarily, than that this court should overstep the boundaries of established precedent and sound construction, and annihilate the line which separates judicial from legislative functions. [598] “We are bound,” says Mr. J. Btiller, in an early case in the King’s Bench, “to take the act of Parliment as they have made it; a casus omissus can in no case be supplied by a court of law, for that would be to make laws; nor can I conceive that it is our province to consider whether such a law that has been passed be tyrannical or not”—Jones v. Smart, 1 T. R. 44, 52. “A court of law” says Lord Abinger, “ought not to be influenced or governed by any notions of hardship ; cases may require legislative interference, but judges cannot modify the rules of law ”—Rhodes v. Smithurst, 4 Mees. & W. 63. To the same point, Hall v. Franklin, 8 Mees. & W. 259. “It is not for courts of justice, proprio motu, to provide for all the defects or mischief of imperfect legislation”—Smith v. Ruez, 2 Sumn. 354-5, per Story, J. With the concurrence of the other judges, the mandamus will be refused.