of any of the other counties of Kansas.
in relation to precincts, which I am asked to establish, the act of the terri-
torial legislature of 1855 regulates that subject in the fourth and fifth sections.
The power is there given to the county officers to establish the precincts and
select the judges of election, but there is a liberal provision in the law to meet
any contingency. The fourth and fifth sections of the act are in the following
words:
"Sec. 4. Every couniy that now is, or that may hereafter be established,
shall compose an election district, and all elections shall be held at the court-
house of such county, where one has been erected. If there be no court-house,
then it shall be the duty of the county commissioners to name a house in such
county where the election shall be held; and if such commissioners fail to
name such house 20 days before the election, it shall be the duty of the
sheriff to name such house. In either of the last two cases, the sheriff shall
give notive of the place of holding the election by written advertisements, set
up in at least six public places in such county, or by advertisement in some
newspaper published in such county, at least ten days before the day of the
election: Provided, That the county commissioners may, from time to time,
establish such additional election precincts as may seem to them necessary
or proper: Provided further, however. That in no case shall more than one pre-
cinct be established in any one municipal township.
"Sec. 5. The county commissioners shall appoint the judges of election, in
each county or voting precinct, at least 10 days before the election at which
they are to act; and if, at the hour for the opening of the polls, such judges are
not present, then the voters assembled shall have power to elect others to fill
the vacancy or vacancies thus occasioned. Said judges shall, before they
enter on the discharge of their duties, take the following oath or affirmation,
to be administered by one of their own body, by the sheriff, or by any officer
authorized to administer oaths:
"I do swear (or affirm) that I will impartially discharge the duties of judge
of the present election according to law and to the best of my ability."
As to the judges of election, then, there can be no difficulty under this law,
the power being vested in the people at the several precincts, in case the
county officers fail to perform their duty; and if there be no precincts, then the
election can only be held at the seat of justice provided by law for each county.
It has been suggested that this power is given to me under the convention law
of the 19th of February, 1857, to establish precincts. It is true that very large
and comprehensive powers are given to the governor of the territory by that
Governor Walker-s Administration. 31)1
law, to which I shall have occasion hereafter to refer, and which seem to have
escaped public attention; but those powers are especially confined to my ac-
tion under that law, and confer no authority in that respect in regard to the
October election. With me this is a matter of most sincere regret, inasmuch
as it is now, and always has been, my most anxious desire to see a full and fair
election held in October next, and to contribute to this result to the extent of
all the authority devolved upon me by law. By the act of Congress, however,
of the 30th May, 1854, organizing this territory, and which is still in full force,
in that respect, on this subject, it is declared in the thirty-third section, that "the
person having the greatest number of votes shall be declared by the governor
to be duly elected, and a certificate thereof shall be given accordingly." As
regards the territorial legislature, the certificate is to be given by the secretary
of state, who is to count the votes in the presence of the governor; and in re-
lation to the local officers, this duty, in case of contest, is devolved upon tlie
courts.
In view of my duties in connection with this law, my attention has been
called to the qualification of voters under the law. But even here the prior
duty is devolved upon the judges of election, and I might not have felt called
upon to give any opinion upon the subject, but for circumstances of a most
grave and serious character, to which I shall now refer.
The territory is threatened with a violent seizure of the polls at the Octo-
ber election, leading necessarily to a collision and civil war. This would be a
most disastrous circumstance, requiring imperatively the employment of the
troops under my control to avert scenes disgraceful alike to this territory and
to our country, and which every good citizen could not but deplore. If, then,
under these circumstances, the expression of my opinion could prevent, as in
May and June last, the occurrence of such a catastrophe, I regard it as a
solemn duty to make that expression, rather than resort to the employment of
force, to be followed by scenes of anarchy and bloodshed.
The two questions presented for my consideration are:
First: Can those who were qualified under the organic act to vote at the
first election in this territory vote also in October next, independent of any re-
strictions imposed by any act of the territorial legislature?
The twenty-second and thirty-third sections of the organic law, relating to
this subject, are in the following words:
"Sec. 22. And be it further enacted. That the legislative power and authci-
ity of said territory shall be vested in the governor and legislative assembly;
the legislative assembly shall consist of the council and house of representa-
tives. The council shall consist of thirteen members, having the qualification
of voters, as hereinafter prescribed, whose term of service shall continue two
years. The house of representatives shall, at its first session, consist of 26
members, possessing the same qualifications as prescribed for members of the
council, and whose term of service shall continue one year. The number of
representatives may be increased by the legislative assembly, from time to
time, in proportion to the increase of qualified voters: Provided, That the
whole number shall never exceed 39. An apportionment shall be made, as
nearly equal as practicable, among the several counties or districts for the elec-
tion of the council and representatives, giving each section of the territory rep-
resentation in the ratio of its qualified voters as nearly as may be. And the
members of the council and house of representatives shall reside in, and be
inhabitants of, the district, or county or counties, for which they may be
elected, respectively. Previous to the election, the governor shall cause a
392 Kansas ^tate Historical Society.
census or enumeration of the inhabitants and qualified voters of the several
counties and districts in the territory to be taken by such persons and in such
mode as the govei-nor shall designate and appoint; and the person so ap-
pointed shall receive a reasonable compensation therefor. And the first elec-
tion shall be held at such time and places, and be conducted in such manner,
both as to the persons who shall superintend such election and the returns
thereof, as the governor shall appoint and direct; and he shall at the same time
declare the numbers of the council and house of representatives to which each
of the counties or districts shall be entitled under this act. The persons hav-
ing the highest number of legal votes in each of said council districts for mem-
bers of the council shall be declared by the governor to be duly elected to the
council; and the persons having the highest number of legal votes for the
house of representatives shall be declared by the governor to be duly
elected members of said house: Provided, that in case two or more per-
sons voted for shall have an equal number of votes, and in case a va-
cancy shall otherwise occur in either branch of the legislative assembly,
the governor shall order a new election; and the persons thus elected to
the legislative assembly shall meet at such place and on such day as the
governor shall appoint; but thereafter the time, place and manner of hold-
ing and conducting all elections by the people, and the apportioning the rep-
resentation in the several counties or districts to the council and house of
representatives, according to the number of qualified voters, shall be pre-
sci'ibed by law, as well as the day of the commencement of the regular sessions
of the legislative assembly: Provided, That no session in any one year shall
exceed the term of 40 days, except the first session, which may continue 60
days.
"Sec. 2.3. And be it further enacted. That every free white male inhabitant
al)0ve the age of 21 years, who shall be a:a actual resident of said territory,
and shall possess the qualifications hereinafter described, shall be entitled to
vote at the first election, and shall bo elegible to any office within the said
territory; but the qualifications of voters and of holding office, at all subsequent
quent elections, shall be such as shall be prescribed by the legislative
assembly: Provided, That the right of suffrage and of holding office shall
be exercised only by citizens of the United Stales, and those who have de-
clared on oath their intention to become such, and shall have taken an oath
to support the constitution of the United States and the provisions of this
act: And provided further. That no oificer, soldier, seaman, or marine, or
other person in the army or navy of the United States, or attached to troops
in the service of the United States, shall be allowed to vote or hold office in
said territory by reason of being on service therein."
It will be perceived that the act of Congress is clear and explicit on this
subject. It prescribes the qualifications only of those who "shall be entitled
to vote at the first election, and shall be eligible to any office within the said
territory; but the qualification of voters and of holding office, at all subsequent
elections, shall be such as shall be prescribed by the legislative assembly."
The provisos have no application whatever to the subject, inasmuch as they
only prohibit the legislature from permitting persons to vote who are neither
native nor naturalized citizens, nor have declared on oath their intention to
become citizens, and certain officers, soldiers of the army, &c.
Now, then, it is clear, first, that as regards all elections but the first, the
qualifications are not prescribed by the act of Congress; and second, the
Governor W^alJcer^s Administration. 393
qualifications, with the restrictions before mentioned for all subsequent elec-
tions, are to be designated exclusively by the territorial legislature.
It is certain, then, that the question now raised as regards the pretended
right of persons to vote who possess the requisite qualifications, under the
act of Congress, for voting at the first election, but are excluded by subse-
quent territorial legislation now in force, has no foundation whatever in law;
and such votes would be wholly illegal. Under these circumstances, I trust
that no one will attempt to vote who is excluded by the territorial law; and
that if such illegal attempt is made, such a clear violation of the act of Con-
gress and of the laws of this territory will be arrested and prevented by the
judges of election.
The second question is:
Will voters at the elections in October, who possess all the qualifications
provided by the territorial act of the 20th of February, 1857, which is the
last act on this subject, be also required to possess other and different quali-
fications contained in the preceding territorial enactments, or is the last law
the sole rule of action on this subject? This last act is the general election
law, providing for a new and entirely distinct apportionment of m-embers
for both branches of the territorial legislature, as also the qualifications of
voters at that and all succeeding elections, and is entitled "An act to define
and establish the council and representative districts for the second legisla-
tive assembly, and for other purposes." The first section designates by name
the several counties of Kansas which are to constitute the several council
districts; the second section designates by name the several counties of Kan-
sas which are to constitute the respective representative districts; the third
section apportions members among the several representative districts accord-
ing to the census provided for in the convention law; the fourth section ap-
portions in the same manner the members among the several council districts;
tlie fifth and last section is in these words:
"Sec. 5. Every bona fide inhabitant of the territory of Kansas, being a
citizen of the United States, over the age of 21 years, who shall have resided
six months in said territory before the next general election for members of
the council and house of representatives, and no other person whatever, shall
be entitled to vote at any general election hereafter to be held in this terri-
tory: Provided, however. That nothing in this act contained shall be con-
sidered to apply to or affect in any manner the provisions of an act entitled
'An act to provide for taking the census, and election for delegates to a con-
vention.'
"This act to take effect and be in force from and after its passage."
The language of this section is clear and explicit. It is an act prescribing
the qualifications, and all the qualifications, of voters at all future elections.
The law is perfect and complete in itself, without any reference whatever to
preceding enactments. The language is free from controversy. "Every bona
fide inhabitant," &c., "shall be entitled to vote," &c. The words are impera-
tive. It is the language of command from the proper authority, and no one
has any right to interpolate restrictions contained in preceding enactments.
It is a well-settled principle of law, as well as of common sense, that when any
subsequent statute proceeds to regulate an entire subject in general and com-
prehensive language, it is of full force and effect in and of itself, and no re-
striction or addition can be made to its provisions by reference to any pre-
ceding enactments. In such a case there can neither be addition nor subtrac-
tion; and the number of qualified voters can neither be augmented by
—25
394 Kansas State Historical i^ociety.
adding to them those who were permitted to vote by preceding laws, nor be
lessened by subtracting those who were restricted from the right of suffrage
by previous enactments. The words "every citizen," &c., and "no other" shall
vote, include all who are described in the act, and exclude all others. Besides,
the right of suffrage is the most sacred known to the American people. It is
the basis upon which repose all their institutions.
It is a right highly favored in our law, and in all such cases, to deprive
any one of this right, the words must be clear and unambiguous. But in this
cape there is no ambiguity; and independent of the fact that this act, as
regards elections and the qualifications of voters, is an act complete in itself,
and prescribing all the provisions applicable to this subject, any interpretation.
by which a restriction as regards the right of voting, contained in a preceding
law, should be superadded to those required in this act, would create a direct
and positive repugnance to its clear and explicit language, and, therefore,
would be most clearly repealed by virtue of that universal principle of juris-
prudence, that, when two statutes contain provisions which are repugnant,
repellant, or contradictory, either by way of addition or subtraction, the last
statute must prevail.
Now, let us see if there would not be direct repugnancy in this case, under
the construction contended for by those who assert that, although the quali-
fication of a territorial tax is not among the qualifications of voters under the
act of 1857, yet that it is a qualification under the act of 1855, and therefore
still in force. Let us place them in opposite columns.
The act of 1857, as now construed, would
read as follows : "Every bona fide inhabitant
of the territory of Kansas, being a citizen of
the United States, over the age of 21 years,
and who shall have resided six months in said
territory before the next general election for
members of the council and house of repre-
sentatives, and no other person whatsoever,
shall be entitled to vote at any general elec-
tion hereafter to be held in this territory " ;
but no such citizen shall be permitted to vote
unless he has first paid a territorial tax.
Is it not clear that the two provisions would be directly repugnant by the
addition to the act of 1857 of a proviso and restriction not contained in that
act, but in a previous 'aw? The words of the act of 1857 are general. "Every
citizen," &c., "shall be entitled to vote on a residence of six months." This lan-
guage gives the right to vote, in clear and positive terms, to every citizen, &c.,
who has been a resident for the term prescribed by law. "Every citizen" are
general and comprehensive terms, and they cannot be restricted by other
words not contained in this law. By the eleventh section of the act of 1855,
no previous residence is required as a qualification for a voter, but the payment
of a territorial tax is made a prerequisite. Now, it is clear that if, when pre-
scribing a previous residence of six months, in using the general and compre-
hensive language "every citizen," &c., the legislature of 1857, besides that resi-
dence for the first time prescribed by law, had intended, in addition, to require
the previous payment of a territorial tax, they would have said so; and not
having said so, such words can be interpolated neither by judicial nor execu-
tive construction. In fact, it is not a case of construction at all, but of using
words which the legislature have not used, and of making provisos and restric-
tions for them which they have not made, and of excluding voters from the
Act of 1857 provides :
"Every bona fide inhabitant of the terri-
tory of Kansas, being a citizen of the United
States, over the age of 21 years, and who shall
have resided six months in said territory be-
fore the next general election for members of
the council and house of representatives, and
no other person whatsoever, shall be entitled
to vote at any general election hereafter to be
held in this territory."
Governor Wafer's Administration. 395
polls whom they have not excluded. Besides, this is no new question. It has
occurred repeatedly in the several states and territories of this union, and, as
a principle of universal adoption, under such laws, it is well settled, without
a single exception to the rule, that where one state constitution, regulating the
right of suffrage, prescribes certain qualifications of voters, it is complete in
and of itself, and is universally regarded as repugnant to so much of any pre-
vious constitution which either adds to or subtracts from such qualifications.
And the same rule prevails in relation to state and territorial laws. This is
the great American rule of interpretation on this subject, amounting, from
long-established and universal usage, to the force of law.
If there could have been any possible doubt on this subject, it is removed
by the provisions of the territorial-convention law, passed on the day preceding
that on which was enacted the election law, and referred to and made the
basis of many of the provisions of the latter. That convention law prescribes
a previous residence of three months and a registry as qualifications for voters,
but is just as silent as the territorial-election law on the subject of the pay-
ment of a tax; and yet no one has ever pretended that the prepayment of any
tax constitutes a necessary qualification for a voter for delegates to that con-
vention. No such payment of a tax was ever exacted, and was rarely, if ever,
made. And such a construction as is now contended for, that because there
was no direct repeal of the tax qualification, therefore it still existed, would
render illegal the election of nearly every member of the constitutional con-
vention, and impair the validity of ali their acts. The election law of 1855,
imposing the tax qualification, was general. It applied to all subsequent elec-
tions; to "every inhabitant of this territory and of the county or district in
which he offers to vote," and to "all elective officers. " It was as general and
comprehensive in its application to every election which could take place un-
der any territorial law as the legislature could make it, and would apply the re-
striction of the prepayment of a territorial tax in voting for delegates to the
convention just as much as in voiing for members of the territorial legislature
in October; upon this alleged principle, that restrictions or qualifications in pre-
ceding la\ys are not repealed by general provisions in a subsequent statute pre-
scribing for subsequent elections the qualifications of voters. The convention
law required a three-m'.'Uths' previous residence and registry as a qualification
of voters, but was silent, like the election law of 1857, as regards the prepay-
ment of any tax; and if such a prepayment, by force of preceding enactments,
applies as a qualification for a voter for the territorial legislature in October,
then it would just as clearly follow, that inasmuch as the convention act was
equally silent as to the payment of a tax, the voters for delegates to that conven-
tion, besides the three months' residence and registry, must have paid a tax
also. But the«truth is, whilst the tax remains, the qualification applies no more
to the election in October than it does to the election of the delegates to the
convention, because it was dropped in both acts, and because we have no right
to insert a most important provision that is thus omitted by the legislature, and
because it is a settled rule, in interpreting statutes, that if the legislature had
intended in either case, in prescribing the qualifications, and all the qualifica-
tions of voters, to superadd one that was inserted in a preceding law, they'
would have repeated the restriction in a subsequent statute. How easy was
it for the legislature, in prescribing the qualifications of voters under the con-
vention or election law, if they intended, in addition to the qualifications
named in these laws, to require the payment of a tax, to have said so, and not
left it to others to interpolate words which they had excluded. They have not
396 Kansas State Historical Society.
said so. and that is enough. On this subject I have never entertained any
doubt, and never supposed there could be any question. And I might have de-
clined the expression of any opinion on either of these points but for the
certain knowledge of the fact, communicated to me from almost every quarter
of the territory, and from all parties, that these conflicting constructions of the
law, if not settled, will certainly produce collision at the polls, and most prob-
ably a disastrous civil war and revolution. I claim no authority to instruct the
judges of election, by virtue of my official power, how they shall decide; but
I give my opinion, as others have given theirs, and with the same sincerity, in
the hone that it may tend somewhat to prevent the disasters with which we
are threatened, growing out of these conflicting opinions, and that it may ren-
der unnecessary a resort to the military force, subject to my orders, to preserv^e
the peace of the territory. That military force which is now already here, or
daily arriving, is amply sufficient to preserve the peace of Kansas; but it is my
sincere hope that the mere presence of this force, competent as it is to suppress
insurrection or rebellion and maintain the authority of the law, will render
any collision unnecessary.
On the 19th of August last, I communicated to the President, through the
secretary of state, my views on this subject, together with copies of the
sevez-al territorial laws, and asked the aid of the President and his cabinet
to sustain me, by the moral force of their opinion, in preventing a collision
and civil war in this territory, by stating, if such should be the fact, their con-
currence with me in these views. In reply to this communication, in a dis-
patch from the secretary of state to me, under date of the 2d of September,
1S57, after remarking most justly, as I always contended, that I could issue