In re Freeholders of Hudson County

• Decision Date: 30 October 1928
• Citation: 143 A. 536
• Parties: In re FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

143 A. 536

In re FREEHOLDERS OF HUDSON COUNTY.

Supreme Court of New Jersey.

Oct. 30, 1928.

Petition by the Freeholders of Hudson County for a declaratory judgment concerning the validity of an act regulating elections. Petition dismissed.

Argued October term, 1928, before GUMMERE, C. J., and TRENCHARD, LLOYD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, and CAMPBELL, JJ.

J. Emil Walscheid, of Union City, for petitioner.

Harry Coulomb, Asst. Atty. Gen., George Vlckers, of Jersey City, and Phillip Klein, of Newark, for respondents.

KALISCH, J. The petition filed by the petitioner in the present proceeding asks this court, by virtue of sections 11 and 13 of the Declaratory Judgment Act (P. L 1924, pp. 313, 314), to declare unconstitutional an act entitled "A supplement to an act entitled An act to regulate elections' (Revision of 1920), passed May 5, one thousand nine hundred and twenty, and the amendments thereof and supplements thereto," which supplement was passed October 9, 1928, and was to take effect immediately.

There is grave doubt as to the applicability of the declaratory judgment statute to a situation where the end sought to be attained concerns the invoking of the power of this court to declare a legislative enactment unconstitutional by means of an advisory opinion, or by a judgment declaring what the prospective rights of individuals are, under the assailed statute, in the absence of a real controversy between them. Tersely stated, the claim of counsel of petitioner is that the impugned statute brought before this court for review, deprives, and tends to deprive a voter, who is qualified to vote, from exercising his constitutional right to vote.

In view of the fact that the public is vitally interested and affected by the statute and an election is near at hand, an urgency has arisen for a speedy pronouncement by this court as to the validity of the act, and as counsel of the respective parties have been heard upon the merits of the case and submitted the same to the court, sitting en banc, for determination, we have suspended consideration of the question as to the legal propriety of the procedural form in which the matter is presented.

To sustain the petitioner's contention that the statute is unconstitutional, its counsel argues, first, that the statute is unconstitutional, in that it deprives and tends to deprive a legally qualified voter from voting; secondly, that the statute in its requirements is unreasonable, and therefore void; thirdly, that the statute is in violation of article 4, section 7, paragraph 4, in that the statute violates the constitutional provision that no general law shall embrace any provisions of a private, special or local character. We think that none of these contentions rests upon a sound basis.

Now, as to the first contention, that the statute is unconstitutional, in that it deprives and tends to deprive a legally qualified voter from voting: Article 2, paragraph 1, of the state Constitution, declares:

"Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people."

In Ransom v. Black, 54 N. J. Law, page 446, at page 449, 24 A. 489, 490 (16 L. R. A. 769), Mr. Justice Reed, in speaking on this constitutional declaration, says:

"The right conferred is the right to vote for all elective offices. As to when, where and how the voting is to take place, is left to the Legislature. Without the intervention of the Legislature the privilege conferred by the Constitution would be fruitless. A wide field, therefore, is left open for the exercise of legislative discretion. The days upon which elections are to be held, the hours of the day or night during which, or between which, votes shall be received, must be determined by the Legislature. So, too, the places where each election ia to be held, and the size of the voting precinct, and whether the size shall be measured by territory or population, must also be settled by direct or delegated legislative authority. The widest field for the exercise of legislative wisdom and discussion is in adjusting the method by which the sentiments of the voter shall be obtained and canvassed."

And Mr. Justice Dixon, in the same case, at page 461 of 54 N. J. Law (24 A. 1021), said:

"It must be conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting, and to ascertain the result of the vote. All legislation conducive to these ends is, therefore, permissible. It is also clear that by a vote is intended the free and honest expression of the voters' choice, and hence statutes tending to preserve the voter from coercion or immoral influences are legitimate, provided they do not impair other rights. Outside of these purposes, I see no room for legislative interference with the right of suffrage."

The views expressed by this able jurist were affirmed by the Court of Errors and Appeals, the affirmance being reported in 65 N. J. Law, 688, 51 A. 1109.

It is quite obvious, from this wise judicial declaration, acquiesced in by the Court of Errors and Appeals, that the Legislature may, in order to insure honest elections, pass laws to prevent those not entitled to vote from voting. And this is precisely the very object at which the statute in question is aimed.

The reasoning which is stressed by counsel of petitioner, and which reasoning concludes that the statute abridges the constitutional right of a legally qualified voter to vote, is the result of a fallacious assumption of premises which do not exist in the legislation assailed. The aim of the statute is to prevent one who is ineligible to vote from voting.

In order to constitute a person eligible to vote, he or she must have attained the age of 21 years, and be a citizen of the United States, and a resident of this state for one year, and a resident of the county five months preceding the date of election, and, in addition to this constitutional qualification, he or she must register in the election district where his or her place of residence is, etc. In failing to comply with the requirements alluded to, no right to vote has been acquired. There are many provisions in the election act relating to registration which provide for the correction of mistakes and of omissions, so that those legally qualified to vote shall not be deprived of that right.

The statute sub judice provides, in substance, for an investigation of the registry list by the superintendent of elections, prior to the holding of any election, and whenever, as a result of such investigation or during the course thereof, he shall have ascertained that persons whose names appear on the registry list have been found to be either dead, or to have moved from the place of registry, or have been found to be registered from some place other than the actual residence of the persons whose name appears upon said registry, or are otherwise not entitled to vote at such election from the place of registry of such person, or not qualified to vote at such election, that then it shall be the duty of the superintendent to serve an order in writing, signed by him, upon the proper district board of registry and election, ordering such said district board to refuse to allow said person or persons to vote at such election, provided that, before signing any such order, the superintendent shall give notice to the person to be affected, at least two entire days, of his (the superintendent's) proposed action, and that no such order shall be signed by the superintendent subsequent to the Tuesday preceding such election.

It is quite clear that the statute is directed at those persons who are unlawfully registered, and, therefore, are not qualified to vote. On what sound theory this regulation, to protect the purity of the ballot box, can be said to be in contravention of any constitutional right of a lawfully qualified voter, has not been revealed to us. It needs no argument to establish that, if an unqualified voter casts his ballot, it has the effect to impair the value of the vote of a duly qualified voter. It cannot, therefore, be logically said, because the statute seeks to prevent the unqualified voter from voting at an election, that such legislative action is an interference with the constitutional right of a voter, duly qualified to vote. A qualified constitutional voter is entitled that his or her vote shall have the effect which the law intended it shall have, and this would not be the case, unless the ballot box is strictly guarded against illegal voting.

Prom an examination of the election law relating to registration, it is difficult to perceive how a duly qualified voter is deprived from voting in any case where he has complied with the regulations prescribed by the Legislature concerning the exercise of that right. Of course, if a qualified voter, under the Constitution, neglects to obey the prescribed legislative requirements necessary to qualify him as a voter, he has no one to blame but himself, if he loses his right to vote. It is his own act which deprives him from exercising the voting privilege. It is quite clear, from the decisions of the courts of this state, that, though an individual falls within the class of those entitled to vote by virtue of the constitutional declaration, nevertheless the manner in which and how he shall become entitled to exercise the right extended to him or her is left to the sound discretion and wisdom of the lawmaking power of this state. Ransom v. Black, supra.

It is further contended that the statute sub judice is unconstitutional because it invests the superintendent of elections with the exercise of judicial functions which can only be...