People ex rel. Twitchell v. Blodgett

• Decision Date: 28 January 1865
• Citation: 13 Mich. 127
• Court: Michigan Supreme Court
• Parties: The People on relation of Daniel S. Twitchell v. Amos C. Blodgett

13 Mich. 127

The People on relation of Daniel S. Twitchell v. Amos C. Blodgett

Supreme Court of Michigan

January 28, 1865

Argued January 26, 1865 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Information in the nature of a quo warranto.

Judgment for relator.

Albert Williams, attorney-general, and H. C. Knight and Alfred Russell, for the people:

1. The powers of this court in relation to constitutional questions and the conditions on which they would declare an act of the legislature unconstitutional, have been more than once passed upon and clearly defined in the published reports of their decisions. Upon these points this court has taken the same views with other courts of the highest authority.

It will be seen by consulting the cases, that, whilst the legislature doubtless ought, as a political duty, to hesitate to enact a statute of which there may be reasonable doubt as to its being constitutional, the court, on the other hand, will not assume an attribute of sovereignty, of which there are reasonable and well founded doubts, by abrogating a legislative act: Sears v. Cottrell, 5 Mich. 251, 256; People v. Gallagher, 4 Mich. 244; Scott v. Smart's Executor, 1 Mich. 306, 307; Sill v. Village of Corning, 15 N. Y., 303.

2. Under the principles well established in the cases above cited, and repeatedly declared in those quoted below, it may be affirmed, without the slightest misgivings or qualifications, that when the place and manner of holding elections are not prescribed by the constitution, they are within the discretion of the legislature, and the reception of votes from persons actually being out of their election district or the state, might be authorized by statute. This is admitted expressly, or clearly implied in the opinions of the courts in the several states in which decisions have been rendered upon this subject: 11 Law Reg., p. 462.

3. Is this question left to the legislative discretion in Michigan?

The constitution of Michigan confers general law making power upon the legislature, prescribes the qualifications of electors, but does not prescribe the particular mode of applying the vote to the decision of elections in the townships and wards, and, therefore, leaves it to the legislative authority: Const., Art. 7, § 1.

The provisions of our constitution, then, being express with reference to the general qualifications of the voter, but containing no restrictive clause with regard to the place of actually offering the ballot, is it necessarily implied from any of the express provisions that the place of voting is a test of qualification, or in other words, that the bodily presence of the elector is specified?

The citizen of Michigan who enters the army certainly does not lose his residence or rights of citizenship; and if he can reach his home on the day of an election he may then vote in the usual mode: Const., Art. 7, § 5.

Was it contemplated by the convention that the citizen who performs the very highest functions of citizenship should, by that very act, be wholly disfranchised? Because one thing may not have been "dreamed of" by the convention, it is not to be inferred that the opposite was contemplated.

The question, then, is whether such soldier citizen can cast his vote in his proper township or ward without being bodily present therein, if the legislature so provide.

It should be remarked that our constitution and laws contemplate that the government may rely upon all able-bodied citizens for its defense in war, and call upon them imperatively. If there should be an invasion near the time of an election, and all well affected men should take arms and fly to the defense of their country, the traitors and base fellows might seize upon the power of the state, and create a revolution, if there was no way for the true citizens to exercise the right of voting. Surely, the framers of our organic law are not to be presumed to have contemplated such an absurdity.

It may be fairly presumed, further, that the constitutional convention had a reason for the particular language employed in the provision for soldiers neither gaining nor losing their residence. They intended clearly that a soldier should not be deprived of any right by reason of his involuntary location in any place other than his residence.

The same body which prescribed the qualifications of voters, and under that head prescribed that they should be considered as such qualified electors only of the township or ward of their residence, also took care to provide expressly that they should not lose such residence by their involuntary location under superior orders. Why this care, if they were to be forbidden the possibility of the use of their qualifications whilst thus subject to superior command.

The courts recognize fully the effect of different wording in the constitutions of the several states, and those which have felt themselves obliged to overrule laws of this character, have done so on the strength of the peculiar language of their own constitution. See the cases above cited.

The court in Iowa have well considered this point, and sustained their own statute, not because there was any peculiar language in the constitution permitting it, but because there was no peculiar language in that instrument for bidding it. They held that the omission of certain restrictive clauses in the constitution of other states was to be credited to an intelligent design, and express the opinion that the constitution of Michigan is, in this respect, similar to that of Iowa: Morrison v. Springer, 12 Law Reg., 280-3.

The express and evident object of Sec. 1, Art. 7, of our constitution is to prescribe the qualifications of electors. After doing so generally, it is added, in the nature of a proviso, that they shall not be deemed such electors in any other district than that of their residence. The alternative is any other township or ward; that the soldier's vote shall be received and have effect in the township or ward of his residence. It was intended to prohibit the practice of voting for state officers, etc., in some other district, and to prevent soldiers, sailors, etc., influencing and controlling the local government of places where they happened to be, as had often been attempted, on the one hand, and to preserve the full franchise of citizenship at their proper place of residence, on the other. There is no attempt to prescribe anything concerning the single fact of the bodily presence of the person. The substantial provision is, that the residence of the elector shall have been in his township or ward ten days, and not that he shall vote in any particular manner: Morrison v. Springer, 12 Law Reg., 285.

We maintain that the act of voting in a township or ward is the expressing, in legal form, of a choice for officers of such township or ward, and that it does not include in its essential definition the idea of the personal locality of the actor; and that confining the offering to vote, and the consequent act of voting, to the township or word of the elector's residence, is intended simply to exclude his vote being received and having legal power in any other ward or township. The essential idea is, that he shall vote for officers of his own district, and not for those of another. This is the affirmative and negative of the proposition, and exhausts its legal meaning.

The strict meaning of the constitution of Michigan is that the qualified elector shall be deemed such qualified elector in the district of his residence, and not that he shall only exercise his right in a particular mode of manual delivery of a ballot within said district. Vide Wisconsin Ms. opinion.

The Vermont and New Hampshire courts go upon the strict letter of their constitutions, and affirm the perfect legality of the votes cast by soldiers for members of congress, and electors of president and vice-president beyond the borders of their states. They thus perfectly establish our definition of the act of voting, and our demand that nothing shall be inferred beyond the clear provisions of the constitution: Vermont Pamphlet opinion; 13 Law Reg., 161, note.

G. V. N. Lothrop, and T. Romeyn, for respondent:

1. It is the duty of the court to construe the constitution according to the thought which it expresses; to interpret it in the light of its language, its history, its policy, and its practical and received construction; to give effect to what it forbids or enacts, by implication, as well as directly and expressly; and different parts of it are to be weighed and compared, and, if possible, effect is to be given to each and all. If its thought, intent and language, thus construed, are inconsistent with the provisions of an act of the legislature, the latter must be declared invalid. See Marbury v. Madison, 1 Cranch 137; Gibbons v. Ogden, 9 Wheat. 188; Newell v. People, 7 New York, 97; 1 Doug. Mich., 354, Green v. Graves; 1 Mich. 118, Brooks v. Hill; 2 Mich. 587, Southworth v. Palmyra & Jackson R. R. Co.; 3 Mich. 67, Teft v. Teft; 5 Mich. 53, Chappee v. Thomas; 5 Mich. 251, Sears v. Cottrell; 5 Mich. 417, Chandler v. Nash; 7 Mich. 345, Streeter v. Paton; 8 Mich. 274, Woodbridge v. City of Detroit; 8 Mich. 333, Tyler v. The People; 11 Mich. 120, Parsons v. Russell, 11 Mich. 139, Ames v. Port Huron Log Co.

It would seem unnecessary to cite so many cases to establish elementary principles, but in the debates on the passage of this bill all the elements involved in the above decisions were assailed.

2. The constitution of Michigan, by a fair construction of its language, and comparison of its different provisions requires that the voter shall deposit his ballot in person, in the township or...