Ensworth v. Albin

• Decision Date: 31 August 1870
• Citation: 46 Mo. 450
• Parties: SAMUEL ENSWORTH, Plaintiff in Error, v. WILLIAM M. ALBIN et al., Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 450

SAMUEL ENSWORTH, Plaintiff in Error,

v.WILLIAM M. ALBIN et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1870.

Error to Fifth District Court.

Ensworth, for plaintiff in error.

Points of counsel are sufficiently set out in the opinion of court.

Everett, Reed & Pike, for defendants in error, cited State ex rel. Ensworth v. Albin, 44 Mo. 346; City of St. Louis v. Teifel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State ex rel. Weir v. County Judge, 2 Iowa, 280; 37 Mo. 330; 2 Conn. 490; 38 Mo. 209; 25 Mo. 125; 21 Penn. 147; 15 Iowa, 305; 4 Dale, 14; 41 Mo. 224-30.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding by writ of mandamus to compel the County Court judges of Buchanan county to issue to the relator a commission as judge of the Common Pleas Court of that county, and is, as respects its subject-matter and the parties, identical with a former suit by the State, upon the relation of Ensworth, against the same respondents, reported in 44 Mo. 346. It was held in that proceeding that the special election, under which the relator claims, was unauthorized and invalid, and that the relator consequently acquired no rights under or in virtue of such election. Upon that ground the peremptory writ was denied. The election was held invalid for the reason that it was not preceded by the special registration contemplated in section 18 of the act of March 21, 1868, in relation to the registration of voters. (Sess. Acts 1868, p. 136, § 18.) It is not now claimed that there was any such special registration, but it is insisted--a point not made before--that the statute requiring the registration is unconstitutional and void. The act referred to is now assailed as unconstitutional in various particulars and upon various grounds:

1. As in conflict with the provisions of article IV, section 32, of the constitution. It is urged that the act contains subjects of legislation which are not expressed in the title. That objection has no application to the eighteenth section. The subject of that section is sufficiently pointed out and expressed in the title, and does not, therefore, fall within the scope of the objection, since the constitution expressly provides on that subject that an “act shall be void only as to so much thereof as is not so expressed.”

2. The special registration provided for in section 18 is supposed to break up the uniformity of registration required by article II, section 4, of the constitution. The uniformity of registration there required has reference to equal and uniform laws regulating registration, which, under like circumstances and conditions, shall have equal and uniform effect in all parts of the State. There is nothing in section 18 of the act of 1868 inconsistent with a uniformity of that character; that is, the requirement of a supplemental registration to meet the exigency of a special election is not at variance with the uniformity required by the constitution. The constitution makes it the duty of the Legislature to provide by law for the registration of all persons who are, by its provisions, qualified to be registered as legal voters. It further requires that “a new registration shall be held once in every two years, and within sixty days next preceding the tenth day prior to every biennial general election.” So much the constitution demands, but it nowhere prohibits intermediate registrations “for the purpose of keeping the list of qualified voters complete” for use at special elections. It would be a reproach to that instrument if it contained a prohibition so entirely unreasonable. If the constitution contained no provision on the subject of registration, the Legislature would nevertheless be at liberty and have the power to enact the registration system. It has the same power now as to all matters not prohibited or provided for in the constitution; and there is no prohibition or provision covering the subject of completing the list of voters preliminary to special elections. (See Sharpless et al. v. The Mayor of Philadelphia, 21 Penn. 147; Morrison v. Springer, 15 Iowa, 304.)

3. It is again objected that the registration act makes that “evidence of a person's right to vote, which the constitution expressly inhibits.”

The constitution (art. II, § 4) provides that after a registration has once been made, such “registration shall be evidence of the qualification of all registered voters to vote at any election thereafter held,” and that the “fact of such registration shall be in no otherwise shown than by the register or an authentic copy thereof.” It was to secure to persons entitled to registration, but who were not registered prior to the last preceding general election, this constitutional evidence of their qualification as voters, that the Legislature, in section 18 of the registration act, provided for a special registration preliminary to special...