Carpenter v. Cornish

• Citation: 85 A. 240,83 N.J.L. 696
• Parties: CARPENTER v. CORNISH et al.
• Decision Date: 18 November 1912
• Court: United States State Supreme Court (New Jersey)

85 A. 240

83 N.J.L. 696

CARPENTER

v. CORNISH et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1912.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Harriet F. Carpenter against Charles A. Cornish and others. Judgment for defendants (83 Atl. 31), and plaintiff brings error. Affirmed.

Mary Philbrook, of Newark, for plaintiff in error.

SWAYZE, J. The Supreme Court held that the main contention of the plaintiff in error was untenable, because women had not been authorized to vote, under the Constitution of 1776. Without expressing our opinion upon this point, we prefer to decide the case by a somewhat different line of reasoning. It must be conceded that the Constitution of 1844 limited the right to vote for officers elective by the people to male citizens of the United States. The contention is that this limitation must be disregarded, because the Constitution of 1844 was improperly adopted, for the reason that only male citizens were allowed to vote thereon. This contention has the distinction of being as courageous as it is novel. This court exists only under the Constitution of 1844, and if that Constitution is not the law of the state we and our predecessors for nearly 70 years have been usurping powers that do not belong to us. The very writ of error issued by the plaintiff out of this court would, if her contention is correct, be entirely nugatory, since her right of appeal from the decision of the Supreme Court would be to the Governor and Council, under the Constitution of 1776; and, inasmuch as no Council has been in existence since 1844, the plaintiff in error would be unable to correct any error that the Supreme Court might have made. Her difficulties, indeed, would be even greater; for upon her contention no member of the Supreme Court for the last 68 years has been properly appointed, and the best that could be said for that tribunal would be that it had a de facto existence. If she is right now, we have been without legally constituted Judicial tribunals. Results so startling suggest that the argument is defective. Counsel for the plaintiff seems to have realized the difficulty; for at the very close of her brief she suggests that it is only the suffrage clause that is under attack, and she adds: "We cannot say the Constitution was not adopted by the majority of the people. We presume that it was. But emphasis is laid upon the fact that the suffrage clause is the only part of the Constitution which deprives people of former constitutional rights." The obvious answer to this suggestion is that if the Constitution of 1844 was adopted by a majority of the people, as the counsel presumes it was, the suffrage clause was adopted by the same vote; and if the majority of the people chose to deprive people of their former constitutional rights we cannot alter the situation. Every change in the Constitution of 1776 deprived some one of some previously existing right. The Constitution of 1844 has been assumed to be the organic law since its adoption, and no question has heretofore been raised as to its validity. The courts do not undertake to determine so fundamental a political question as the existence of the government they serve. Each member of this court has more than once taken an oath of allegiance to the government established in this state under the authority of the people. The only state government any of us has known is that established by the Constitution of 1844, and it would be the height of absurdity for us now to declare that the government to which we have sworn allegiance has no legal existence. As was said by the Supreme Court of the United States, in Luther v. Borden, 7 How. 1, at page 40, 12 L. Ed. 581: "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown the powers of its courts and other officers are annulled with it. And if a state court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence of authority of the government under which it is exercising judicial power." It is true that in Bott v. Secretary of State, 63 N. J. Law, 289, 43 Atl. 744, 881, 45 L. R. A. 251, we passed upon the question whether the lottery amendment of 1897 had been legally adopted; but Justice Dixon called attention to the difference between a court's investigation into the legality of the government of which the court is a branch and its investigation into the legality of the procedure, which in no way Involves the legality of the government itself. That difference, he said, was too plain to require elucidation. The Supreme Court of the United States has in two recent cases refused to consider similar questions, upon the ground that they were political and not judicial in their character. Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 890, 1009, 44 L. Ed. 1187, which involved the governorship of Kentucky. The Pacific Telephone Co. v Oregon, 223 U. S. 118, 32 Sup. Ct. 224, 56 L. Ed. 377, which involved the validity of the initiative and referendum in the Constitution of Oregon.

The plaintiff in error, however, claims that, even if our view is correct, she is entitled to vote for members of Congress, since that is a right secured to her by the Constitution of the United States. It is, we think, settled by the decision in Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274, that the federal Congress may legislate for the protection of the right to vote for members of Congress. This decision, however, did not overrule the earlier case of Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. In that case, upon application of a woman for the right to vote, the court held that the Constitution of the United States does not confer the right of suffrage upon any one. This is explained in Ex parte Yarbrough as meaning that the right was not definitely conferred on any person by the federal Constitution alone, because under the terms of that Constitution itself it was necessary to look to the law of the state to ascertain the qualifications for voters, under the clause of the federal Constitution which prescribes as the qualification for electors of the House of Representatives that they shall have the qualifications requisite for electors of the most numerous branch of the state Legislature. The point now made is that those qualifications were fixed in 1787, when the federal Constitution was adopted, and are not subject to change by subsequent action of the states. It is argued that the Constitution constituted a contract with the electors, which it was beyond the power of the state to impair after the federal Constitution had been adopted. The argument proves too much; for if the state could not deprive a class of voters of the suffrage it could not deprive them of the influence which that suffrage gave them by admitting others to the right on less onerous terms, and the property qualification prescribed by the Constitution of 1776 could never have been altered. The fact that the right of suffrage has been constantly extended without objections, not only in New Jersey, but in the other 13 original colonies, shows the fanciful character of this argument. The contemporaneous construction has been persistently adverse to this contention of the plaintiff in error. The consequences, if that contention should prevail, would be serious. From the beginning of the government, there has been a constant tendency to consolidate state and national elections, to hold them upon the same day, and to vote for national and state officers upon the same ballot. This would be impossible if the qualifications for electors or members of Congress must necessarily remain as they were originally, while the qualifications for electors of the most numerous branch of the state Legislature are subject to change by the several...