Frederick C. (Frederick Charles) Brightly.

A Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities online

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senate, who would, under the proyisions of the constitution, haye sue*
ceeded to the presidency, in the eyent of the conyiction and remoyal of
the incumbent, was not only allowed to be sworn in as a member of the
court, but actually yoted for the conyiction of the accused, in which he
had so deep a personal interest. 2 Johnson's Trial 486-7, 496 ; 8 Ibid.

Digitized by VjOOQ IC


In the Supreme Court of Pennsylvania.

(Bepobtbd 41 Fbnnstlyania State Reports 403.)

IPlace of voting.']

The legislature haye no power, under the constitution, to authorize elec-
tors in the military service, to cast their votes at any place outside the
district in which they have a legal residence.

An act of assembly professing to confer such authority, is unconstitu-
tional and void.

Certiorari to the Quarter Sessions of Luzerne county.
This was a case of contested election, founded on the
complaint of the requisite number of qualified electors,
alleging an undue election and false return of Ezra B. Chase
to the ofiice of district attorney. Chase received a majority
of the votes polled within the county ; but Jerome G. Mil-
ler received a sufficient number of votes from volunteers
in the military service of the United States, if legal, to
give him a majority of all the votes polled. The legality
of the army vote was the question before the court. The
court below (Conyngham, J.) sustained the constitution-
ality of this vote, and decreed that Jerome G. Miller was
duly elected ;* which was assigned for error.

L. Hakes and S. Woodward^ for appellant.

S. P. Lonffstreet and 6r. M. Wharton^ for appellee.

Woodward, J., delivered the opinion of the court. This
is a case of contested election ; it comes up to us by certio-
rari; a motion was made and fully argued, to quash the

* The opinion of the court below will be found in 2 Luzerne L^. Ob-
server 74.

Digitized by


Chasb v. Millbr. * 216

(Place of YOting.)

writ, on the ground, that the decree of the court below is
final and conclusive, and that we have no jurisdiction to
review it. The first point to be considered, therefore, is
our jurisdiction; for if there be any doubt on that head,
we shall be more than willing to escape the constitutional
question upon the record. (The learned judge here en-
tered into an elaborate and exhaustive examination of the
question of jurisdiction, which was fully sustained.)

Under the act of assembly above referred to (8d May
1850, Purd. Dig. 883) an election for district attorney was
held in Luzerne county, last October, at which Ezra B.
Chase and Jerome G. Miller were the candidates. After
counting what the return judges considered legal votes,
they gave their certificate of election to Chase ; but twenty
qualified electors filed their complaint in writing, setting
forth an undue election and false return of Chase, and
thus this contest was inaugurated. Besides complaining
of a large number of fraudulent votes cast within the
county, the petitioners set forth that "on the day of elec-
tion, -certain citizens of the commonwealth, being qualified
electors of the county of Luzerne, and then in the actual
military service, in certain detachments or companies of
volunteers, under a requisition from the president of the
United States, and by the authority of the gi^vernor of
the commonwealth, did, agreeable to law, hold an election
for the purpose of electing county officers of Luzerne ;"
and then followed a detailed statement of the votes cast
by different companies for the office of district attorney,
and a complaint that the return judges excluded the vote
of the volunteers, and issued their certificate in disregard
of it.

The petitioners did not give the names of the military
voters, nor tell the court where they voted. Exceptions
were filed to the complaint, one of which was, that the
place of voting was not disclosed ; but the court overruled
the exceptions, and refused to quash the complaint, or
compel it to be amended in this particular. Pending the

Digitized by


216 Chase v. Milleb.

(Place of Toting.)

proceedings upon this petition, the parties, on the 24th of
December 1861, entered into, and with the leave of the
court, filed of record, a written agreement, in these

^^It is agreed, the following facts be submitted, as a
case stated, for the court's decision. Admitted that of the
votes polled within the county of Luzerne, Ezra B, Chase
received 6811 votes, and that Jerome G. Miller received
6646 ; and that the said number of votes by each received,
be counted by the court as legal votes. TTiat of the votes
polled by the volunteers in the army, Ezra B. Chase re-
ceived 48 votes, Jerome G. Miller received 362 votes; but
the legality of the votes polled by the volunteers in the
army not being admitted, the question as to the legal
efiect thereof is submitted as a matter of law for the court
If the court should be of opinion, that the army vote is
constitutional and legal, the same to be allowed by the
court, and added to the vote cast in the county for the
party or parties in whose favor they may be, and then the
court to decree in favor of the party having the greatest
number of votes. If no part of the army vote is received,
the decree to be in favor of Mr. Chase ; the army vote
being taken as above stated, the objections to it being all
waived, except as to its constitutionality."

On the 6th of January, the court made their decree
" upon the written statement of facts agreed to by the par-
ties, and filed upon the 24th December ultimo, no other
evidence being offered," which was to the effect that the
army vote was legal, that it should be counted, and that
it gave a majority to Miller, to whom the office was

It has been seen already, that the inability of the court
to review a decree of the court of quarter sessions on its
merits, springs not from any organic defect of jurisdiction,
but from the want of a bill of exceptions to certify us of
the facts ; but no bill of exceptions is needed when the
parties agree upon the facts, and the court make their

Digitized by


Chase v. Miller. 217

(Place of voting.)

agreement a part of the record, and then "thereupon judg-
ing," base their decree exclusively on such agreement. A
bill of exceptions compels the facts upon the record;
neither the court nor the partjr can resist it ; but the par-
ties cannot be compelled to agree, nor the court to admit
their agreement to record ; still, both may be done, and
thus the purpose of a. bill of exceptions fully attained.
The agreed facts become, in such case, as real a part of the
record, as if a special verdict had been received and re-
corded. The court to whom the legislature committed
this contested election, is provided with a jury which
might be used to ascertain facts, and a special verdict is
as much legal ground for judgment in the quarter sessions
as in the common pleas. The parties have come to what
is substantially a special verdict, by their agreement, and
it is wholly immaterial, that they did not reserve to them-
selves a right of review, for not waiving it, the law gave
them that. Had the court possessed itself of the &cts j)€r
testes^ whether in the form of oral evidence, or by deposi-
tions, we could not notice them, simply because there is
no mode of certifying to us what the facts were ; but,
placing them upon the record by the concurrent consent
of court, counsel and parties, and then basing their decree
most distinctly and exclusively upon the facts so ascer-
tained, it would be hypercriticism run mad so to construe
the statutes under which we sit, as to deny a citizen the
right of review.

K we should limit ourselves strictly to the agreement
of 24th December, as the court below did, we should be
obliged to say, it was wholly insufficient to support the
decree that was built upon it, for it does not tell us that
the volunteers, who cast, what it calls, the army vote,
were qualified electors of Luzerne county; that they were
serving in any detachment or company, in pursuance of
public authority; who they were, nor where they voted,
whether within ten miles of their usual place of voting, or
in Virginia or Kentucky; on all these points the agree-

Digitized by


218 Chasb v. Millbr.

(Place of Toting.)

ment is dumb. And if the parties were able to bring
before the return judges no bettei? case than is made by
that paper, the judges did well to reject the army vote,
and award the certificate according to votes of whose
legality they had some evidence.

But to help out the record, we choose to read the agree-
ment in connection with the petition of complaint, and
we have already seen, that that did set forth, not as fully
as it ought, but with tolerable precision, the qualified
character of the volunteers who cast the votes in question.
By the expression "army vote,*' in the agreement, we are
then to understand, the votes alluded to in the petition of
complaint; this is absolutely necessary to meet the main
question of the cause, for there is nothing in the agree-
ment, in and of itself considered, to raise that question, or
any other that is worthy of judicial notice.

But even when we construe the agreement by the pre-
cedent parts of the record, we cannot learn in what state
the votes were cast. The army raised in Pennsylvania has
been employed, most of the time, in other states; though
camps of instruction have been maintained within our
own state. The reasonable presumption is, that the votes
denominated the army vote, were cast partly within and
partly without our state; and such, we have reason to
believe, was the fact. 'No account whatever was made of
the place of voting in the court below.

The "army vote," as it is most loosely called in the
agreement of 24th December, was cast somewhere; and
counted, in pursuance of section 43d, and the sections
immediately succeeding, of the general election law of 2d
July 1889. Purd. Dig. 879.

The 48d section is in these words: "Whenever any of
the citizens of this commonwealth, qualified as herein-
before provided, shall be in any actual military service, in
any detachment of the militia or corps of volunteers, under
a requisition from the president of the United States, or
by the authority of this commonwealth, on the day of the

Digitized by


Chasb v. Miller. 219

(Place of voting.)

general election, such citizens may exercise the right of
suffrage, at such place as may be appointed by the com-
manding officer of the troop or company to which they
shall respectively belong, as fully as if they were present
at the usual place of election ; provided, that no member
of any such troop or company shall be permitted to vote
at the place so appointed, if, at the time df such election,
he shall be within ten miles of the place at which he
would be entitled to vote, if not in the service aforesaid."

This section and its sequents are virtually a reprint of
the act of 29th March 1818. 6 Smith's Laws 70. The
proviso of that act prescribed two miles from his usual
place of voting, as the condition on which the volunteer
in actual service might exercise suffi*age elsewhere. Such
a proviso, whether two miles, as in the act of 1818, or ten
miles, as in the act of 1889, is an intimation of that which
we have other reasons for believing, that the legislature
of neither of those years had any thought whatever of
legalizing military voting outside of our own territorial
limits. They probably meant to give the citizen-soldier,
who should be in actual service within the state, on the
day of the general election, an opportunity to vote, if his
engagements detained him at the prescribed distance from
his domieil. And so understood, there was nothing in
the state constitution, when the act of 1818 was passed,
which its terms could be thought to contravene.

The constitution of 1790 was then in force, and the
qualifications of an elector which that instrument pre-
scribed, were that he should be a freeman of the age of
twenty-one years, that he should have resided in the state
two years next before the election, and within that time
paid a state or county tax, which should have been assessed
at least six months before the election ; or that he should
be a son, between twenty-one and twenty-two years of age,
of a citizen qualified as aforesaid. This was the constitu-
tional rule, and the whole of it, up to January 1st, 1889,
when the amended constitution of 1888 took effect; and

Digitized by


220 Chasb v. Miller.

(Place of voting.)

therefore, when the revisers of our civil code, who were
very competent constitutional lawyers, reported, in 1834,
a general election law, substantially the same that is now
in force, they did not hesitate to retain the substance of
the act of 1818. Had their report been made after the
constitution of 1888, we would scarcely have expected
them to incorporate the provisions of the act of 1818, for,
as we shall see hereafter, the constitution of 1838 made the
precise place of voting an element of the right of suffi^age.

For five years their report was not taken up by the legis-
lature, and when, near the close of the long session of 1839,
it came up, the legislature passed it pretty much in the
words submitted by the revisers, without adverting to the
changes which, in that interval of five years, had taken
place in our fundamental law. We are not to wonder at
this, for instances of even more careless legislation are not
uncommon. The act was a long one, made up of 157 sec-
tions, was not touched until a late day of the session, and
was adopted by the two houses on the 25th June, the very
day they adjourned; it was signed J)y the governor on the
2d July 1839, which gave the act its date. If, in the
hurry of closing a long session of the legislature, any one
of the numerous provisions of the act suggested a consti-
tutional doubt to the mind of a single member, he doubt-
less dismissed it upon fitith in the revisers, without remem-
bering that he was called upon to consider a very different
constitutional question from any that engaged their atten-
tion. Tradition tells of no constitutional debates on the
act of 1839, in the legislature that passed it. I mention
these circumstances, as showing how inconclusive is the
argument which the learned judge below attempted to
deduce in favor of the constitutionality of the act, from
the high character of many of the members of the legis-

The great question now before us, is, whether the 43d
section of the act can be reconciled with the first section
of article 3d of the amended constitution? Having

Digitized by


Chase v. Miller. 221

(Place of voting.)

already quoted the 48d section, I will bring into contrast
with it, the very terms of the constitutional provision:

"In elections by the citizens, every white freeman of
the age of twenty-one years, having resided in this state one
year, and in the election district where he offers to vote^ ten days
immediately preceding svjch election^ and within two years
paid a state or county tax, which shall have been assessed at
least ten days before the election, shall enjoy the rights
of an elector; but a citizen of the United States who had
previously been a qualified voter of this state, and removed
therefrom and returned, and who shall have resided in the
election district, and paid taxes as aforesaid, shall be en-
titled to vote after residing in the state six months; pro-
vided, that white Jfreemen, citizens of the United States,
between the ages of twenty-one and twenty-two years,
and having resided in the state one year, and in the elec-
tion district ten days, as aforesaid, shall be entitled to
vote, although they shall not have paid taxes."

By comparing this clause with the corresponding pro-
vision of the constitution of 1790, it will be seen in what
the amendments consisted. The word " white" was intro-
duced before "freemen," excluding thereby negro suffrage,
which had prevailed to a slight extent ; the state residence
was reduced from two years to one; and the words requir-
ing a residence in the election district where he offers to
vote, were added.

The latter amendment was probably suggested by the
registry law which was passed in 1836 for the city and
county of Philadelphia; the main object of which was,
to identify the legal voter, before the election came on,
and to compel him to offer his vote in his appropriate
ward and township, and thereby to exclude disqualified
pretenders and fraudulent voters of all sorts. The idea of
a registry of legal voters, as a means to purity of elections,
was hinted by Ch. J. Tilghman, in 1816, in Catlin v. Smith,
2 S. & R. 266 (ante 117). When the third article came up
in the convention of 1838, the political party that had

Digitized by


222 Chasb v. Miller.

(Place of ToUng.)

favored the Philadelphia registry law, brought forward
and supported this amendment, as calculated to accom-
plish, substantially, the same results for the whole state,
which the registry law proposed to accomplish for Phila-
delphia. The political party to whom the registry law
had always been distasteful, opposed the amendment as
an unnecessary clog upon freedom of suffrage, but on a
division, it was adopted by a vote of sixty-four to sixty,
every member from the city of Philadelphia, where the
registry law had proved acceptable, voting for it, and
every member from the county of Philadelphia, which
had never relished the registry law, voting against the
amendment. 9 Debates in Convention 300-20.

Regarding the amendment as designed in general to
exclude fraudulent voting, the question now is, what con-
struction shall be given to its particular phraseology?
Construing the words according to their plain and literal
import (and we must presume that the people of Pennsyl-
vania construed them so, when they adopted the amend-
ment), they mean, undoubtedly, that the citizen, possess-
ing the other requisite qualifications, is to have a ten days'
residence in an election district, and is to offer his ballot
in that district. The second section of this article re-
quires all popular elections to be by ballot. To "offer to
vote" by ballot, is to present one's self, with proper qualifi-
cations, at the time and place appointed, and make manual
delivery of the ballot to the officers appointed by law to
receive it. The ballot cannot be sent by mail or express,
nor can it be cast outside of all Pennsylvania election dis-
tricts, and certified into the county where the voter has
his domicil. We cannot be persuaded that the constitu-
tion ever contemplated any such mode of voting, and we
have abundant reason for thinking that to permit it would
1 — 1- 4q^j^ oil i\^Q safeguards of honest suflfrage. The
ation meant, rather, that the voter, in proprid per-
lould offer his vote in an appropriate election dis-
1 Qrder that his neighbors might be at hand to

Digitized by


Chase v. Miller. 223

(Place of TOting.)

establish his right to vote, if it were challenged, or to
challenge, if it were doubtful.

The amendment, so understood, introduced not only a
new test of the right of suffrage, to wit, a district resi-
dence, but a rule of voting also. Place became an element
of suffrage for a twofold purpose; without the district
residence, no man shall vote; but having had the district
residence, the right it confers is, to vote in that district.
Such is the voice of the constitution; the test and the
rule are equally obligatory ; we have no power to dispense
with either; whoever would claim the franchise which
the constitution grants, must exercise it in the manner
the constitution prescribes.

But, be it observed, the constitution does not define an
election district; and therefore, I hold, that it referred the
definition to the legislature. The words ^^ election dis-
trict" do not occur in the constitution of 1790; the word
^^ district," was often applied by that instrument to subdi-
visions of the state for senatorial, representative and judi-
cial purposes, but never for purposes of election. Election
districts acquired their first constitutional recognition in
1888 ; they had, however, long been familiar to our ordinary
l^islation. "Where any township or townships hath or
have been divided, or hereafter shall be divided, in forming
any election district^^^ an inspector shall be chosen for each
district, said the 7th section of the act of 15th February
1799 (3 Smith's Laws 844); and since that time, we have
had innumerable acts of assembly creating, dividing and
subdividing election districts, until the legislature grew
tired of the subject, and in 1854, turned it over tb the
courts of quarter sessions, to fix election districts, " so as
to suit the convenience of the inhabitants thereof" Purd.
Dig. 886. Always, from 1799 down to the present hour,
election districts, within the meaning of our statutes, have
denoted subdivisions of Pennsylvania territory marked
out by known boundaries, pre-arranged and declared by
public authority. Whether composed, as at different

Digitized by


224 Chasb v. Miller.

(Place of Yotiiifl:.)

periods they have been, of counties or cities, of town-
ships or boroughs, of wards or of precincts, they have
always been such subdivisions of our own territory, and
no man has been known to suggest the formation of an
election district, by Pennsylvania authority, outside of
her state borders. I^ow, whilst the constitution did not
stop to define election districts, it took up and incorpo-
rated them, as the legislature had theretofore, and should
thereafter, define and regulate them; it referred itself to
the legislative will on the subject; and therefore, election
districts mean, in the constitution, just what they mean in
the statutes. This necessary dependence of constitutional
principles upon auxiliary legislation, was explained in
Commonwealth v. Maxwell, 27 Penn. St. R. 444.

We must understand the constitution, then, as prescrib-
ing to the qualified voter, that his ballot is to be cast in
such an election district as the legislature may erect, by
itself or through the courts. And the legislative power
over election districts is unlimited within our own state.
Whether they could form a district beyond our territorial
jurisdiction, ifor the convenience of our own citizens, is a
question which need not be considered, for no such legis-
lation has been attempted; but it is quite clear to our
minds, that the legislature might erect a military camp
within the state, into an election district, and the moment
they should do so, the constitution would apply itself to
that district, in the same manner as to any other.

There must, however, not only be a district to vote in,
but there must be a residence therein for ten days next pre-
ceding the election ; this a part of the condition of suffrage.
Undoubtedly, the primary signification of the word "resi-
dence," as used in the constitution, is the same as domi-
cil — ^a word which means the place where a man exercises
his civil and political rights ; but I am not satisfied, that
the constitution meant to limit itself to this strict and
technical definition of residence. Referring the subject of
election districts to the legislature, as we have seen that it

Digitized 4)y


CShasb v. Millee. 225

(Place of YoUng.)

did, I incline strongly to think, that the constitution
meant also, to leave the subject of residence in an election
district, to legislative discretion, and therefore, that the
legislature are as free to declare what shall be residence
in an election district for ten days next preceding the
election, as they are to prescribe the boundaries of the
district. When they have not exercised their power, nor
attached to the word any other than its ordinary legal
signification, it is to be received, according to its primary
meaning in the constitution, as equivalent to domicil; but
if they should make a military camp, in Pennsylvania, an
election district, and declare that military sojourn and
service therein for ten days should be equivalent to a con-
stitutional residence, for the purposes of election, I would
be extremely loth to think such a law unconstitutional.
These observations, however, on the meaning of the word
residence, must not be considered as expressing the opin-
ion of the court, but only my own.

The meaning of the constitutional clause under consider-

Online LibraryFrederick C. (Frederick Charles) BrightlyA Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities → online text (page 23 of 71)