Daggett v. Hudson

• Decision Date: 01 December 1885
• Citation: 3 N.E. 538,43 Ohio St. 548
• Parties: DAGGETT v. HUDSON.
• Court: Ohio Supreme Court

43 Ohio St. 548

3 N.E. 538

DAGGETT

v.HUDSON.

Supreme Court of Ohio.

Filed December 1, 1885.

On the thirtieth day of November, 1885, Edward Daggett filed in this court a petition, duly verified, alleging that he was imprisoned and unlawfully restrained of his liberty by one Edwin Hudson, superintendent of police of the city of Cincinnati, Ohio, and he asked that a writ of habeas corpus might be granted, and that he might be discharged from such unlawful imprisonment and detention. A writ of habeas corpus was duly issued from this court against defendant, and on the return-day thereof, to-wit, November 10, 1885, in obedience thereto, defendant produced the body of Edward Daggett in court, and made return to the writ, and therein averred that he held and had in custody the said Daggett by virtue of a warrant duly issued by the police court of the city of Cincinnati, as follows:

THE STATE OF OHIO, HAMILTON COUNTY, CITY OF CINCINNATI, ss.- The Police Court of the City of Cincinnati. Before me, Geo. E. Richards, clerk of the police court of the city of Cincinnati, personally appeared John Clear, who, being duly sworn according to law, says that on or about the thirteenth day of October, 1885, at the city aforesaid, one Edward Daggett, L. D. Fletcher, and W. Roberts were the duly-qualified judges of election of Precinct C of the Fifth ward, in said city, at an election for state and county officers, and while acting as said judges aforesaid did unlawfully and knowingly recive and deposit the vote of one A. H. Bugher, who was then and there an elector and resident of said Precinct C of said Fifth ward, in said city aforesaid, but who, from absence, had not registered his name with the registers of said precinct and ward before said election, as was required by the laws of Ohio, contrary to the form of the statute in such cases made and provided, as deponent verily believes; and further deponent say not.

JOHN CLEAR.

Sworn to and subscribed before me this second day of November, A. D. 1885.

GEO. E. RICHARDS, Clerk of the Police Court of the City of Cincinnati.

By GEO. TRAUTNER, Deputy-clerk.

THE STATE OF OHIO, HAMILTON CO., CITY OF CINCINNATI, SS.- The police Court, of the City of Cincinnati.

To the Superintendent of Police of the City of Cincinnati, Greeting: You are hereby commanded to take the bodies of Edward Daggett, L. D. Fletcher, and W. Roberts, and have them before the honorable judge of the police court of said city forthwith, to answer unto the state of Ohio, charged with receiving and depositing an unlawful vote, and of this writ make legal service and due return.

Given under my hand and the seal of said court this second day of November, A. D. 1885.

GEO. E. RICHARDS,

[Seal.]

Clerk of the Police Court of the City of Cincinnati.

BY GEO. TRAUTNER, Deputy-clerk.

Wherefore, said respondent, having fully answered, prayed that the said writ be dismissed, and that said Edward Daggett be remanded to his custody, and that he might have his costs, etc. To this return the petitioner demurred generally, alleging said return to be insufficient to warrant his arrest and detention.John F. [Ohio St. 550]Follett and I. M. Jordan, for plaintiff.

[Ohio St. 555]E. G. Hewitt, [Ohio St. 551]E. W. Kittredge, Thos. McDougall, E. F. Noyes, [Ohio St. 553]Boynton & Hale, and F. T. Dickman, for defendant.

ATHERTON, J.

The grounds upon which the return is claimed to be insufficient is that the law entitled ‘An act to provide for ascertaining the citizens who shall be entitled to vote in cities of the first and second grades of the first class, by amending and supplementing section 2926 of the Revised Statutes,’ (82 Ohio L. 232,) is unconstitutional and void. It is claimed that the provisions of that act are in violation of section 1, article 5, of the constitution, which provides:

‘Every white male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.’

In Pennsylvania the supreme court held that a registry law was unconstitutional on the ground that it impaired the free exercise of the right of suffrage as conferred by the constitution, and that--

‘No constitutional qualification of an elector can in the least be abridged, added to, or altered by legislation, or the pretense of legislation.’ Page v. Allen, 58 Pa. St. 338.

And the supreme court of Wisconsin held:

‘That part of section 8, c. 235, Laws of 1879, which provides that no vote shall be received at any general election unless the name of the person offering to vote be on [Ohio St. 556]the register completed by the board of registry as previously provided in said act, excepting only the case of persons who may have become qualified voters before such election, but after the completion of the register, is in violation of section 1, art. 3, of the state constitution, which defines the qualifications of electors; and that provision being an essential part of the act, without which it cannot be supposed that statute would have been enacted, the whole act is invalid.’ Dells v. Kennedy, 49 Wis. 555;S. C. 6 N. W. Rep. 246, 381.

In these states, like ours, there was no constitutional provision requiring or expressly authorizing registration. Registration laws are in terms either authorized or required to be enacted by the constitutions of the following states: Alabama, Arkansas, Florida, Georgia, Illinois, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, North Carolina, Rhode Island, South Carolina, Virginia, and West Virginia. The constitutions of the following states are silent on the question: California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, Texas, and Vermont.

The question here presented is whether, in the absence of constitutional provisions expressly authorizing it, the legislature can, by its general grant of legislative power and for the purpose of ‘ascertaining the citizens who shall be entitled to vote,’ enact registration laws.

The leading case upon this subject is admitted on all sides to be Capen v. Foster, 12 Pick. 485, and, as will be seen by the foregoing list, was determined by the court of last resort of a state whose constitution was silent on the subject of registration. A statute was enacted establishing the city of Boston, and in section 24 of the act it was provided that prior to every election it should be the duty of the city officers of that city to make a registration of voters, and that no person should be entitled to vote whose name was not found on the list. The supreme court held that the provisions of that act were not to be regarded as prescribing a qualification[Ohio St. 557]in addition to those which, by the constitution, entitle a citizen to vote, but only a reasonable regulation of the mode of exercising the right of voting, which it was competent for the legislature to make. So, in Wisconsin, where the constitution was also silent on the subject of registration laws, the supreme court held that although the constitution (section 1, art. 3) prescribed the qualifications of electors, and that a statute could not impair the right of those possessing them, they might require proof thereof, consistent with the right itself, and that the registry law of that state was valid, so far as it provided for a register of qualified electors to be made in the manner therein prescribed, and constituted such register one mode of proof of the elector's right, and so far, also, as it requires the elector whose name is not upon such register to make other reasonable proof of his right to the inspectors of the election at the time of offering his vote. State v. Baker, 38 Wis. 71. So, in Iowa, it was held that while the right to vote by one possessing the qualifications of an elector as prescribed by the state constitution cannot either be destroyed or impaired by the legislature, yet that the legislature may regulate the exercise of the right by enacting provisions for determining the age, length of residence, etc., of persons offering to vote, and that the registry law of that state providing for the registration of voters was not in conflict with the constitution prescribing the qualifications of electors. Edmonds v. Banbury, 28 Iowa, 267. This court has adopted the doctrine laid down in the case of Capen v. Foster, supra; Monroe v. Collins, 17 Ohio St. 666, 687. Other decisions of like character might be cited; and we think the current of authority is opposed to the decisions in Page v. Allen and Dells v. Kennedy, in so far as they may be understood to pronounce against the constitutionality of all registration laws; and that it is competent for the legislature, under the general powers of legislation granted to it by the constitution, to provide for a general [Ohio St. 558]registration of voters and to make the fact of registry a condition to the exercise of the right of voting. The power being conceded, the legislature is supposed to know best the wants of the state in that regard, and it is not for the courts to question the wisdom of making such enactments.

Registration is one of the modes in which purity in elections may be attained, and every honest and qualified voter has an interest in securing the integrity of the ballot, and excluding the ballots of the dishonest and unqualified. Every honest voter is as much injured by the reception of a fraudulent vote as by the exclusion of his own, and it makes but little difference to him whether his vote is wrongfully excluded, or completely neutralized by the ballot of a person unqualified. Among the safeguards that we deem most efficacious to prevent fraud, insure integrity at the polls, and enable the honest and qualified...