In re Opinion of the Justices

• Decision Date: 28 August 1919
• Citation: 107 A. 705
• Parties: In re OPINION OF THE JUSTICES.
• Court: Maine Supreme Court

107 A. 705

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Maine.

Aug. 28, 1919.

Question.

"Is the effect of the act of the Legislature of Maine of 1919, entitled 'An act granting to women the right to vote for presidential electors,' approved by the Governor on March 28, 1919, suspended by valid written petitions of not less than 10,000 electors, addressed to the Governor and filed in the office of the secretary of state within 90 days after the recess of the Legislature, requesting that it be referred to the people, and should the act be referred to the people as provided in article 4 of the Constitution of Maine, as amended by Amendment 31, adopted September 14, 1908?"

Answer.

This question we answer in the affirmative. In our opinion this legislative act comes within the provisions of the initiative and referendum amendment, and should be referred to the people for adoption or rejection by them.

To solve this problem it is necessary to pursue the same general course as in deciding the question concerning the prohibitory amendment to the federal Constitution, by an examination, first, of the provisions and requirements of the Constitution of the United States relating to this subject-matter, and, second, of the provisions and requirements of the Constitution of Maine.

The first question that naturally arises is this: Where, under the federal Constitution, is lodged the power of determining in what manner presidential electors shall be chosen and of prescribing the qualifications of the voters therefor?

It was competent for the people of the United States, in creating the compact known as the federal Constitution, to lodge this power wherever they saw fit. It was a matter wholly within their discretion. It is a well-known historical fact that there was a long and spirited debate in the constitutional convention over this very question; that is, the method to be adopted in electing the chief magistrate of the nation. Many plans were submitted, such as election by Congress, by the people at large, by the chief executives of the several states, and by electors appointed by the Legislatures. 1 Elliott, Deb. 208, 211, 217, 262.

Finally the following provisions, which were presented by Gouveneur Morris for the special committee, were adopted by the convention after much discussion, and were incorporated in article 11 of the perfected instrument, where they stand unchanged today, viz.:

"Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress," etc. Article 2, § 1, subd. 2.

"The Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States." Article 2, § 1, subd. 4.

These two subdivisions comprise all the provisions of the federal Constitution applicable to the point in issue here. Under section 1, subd. 4, Congress is given the power to determine the date of holding presidential elections and of the meeting of the electors, but that marks the limit of its' constitutional power. In re Green, 134 U. S. 377, 10 Sup. Ct. 586, 33 L. Ed. 951. All other powers in connection with this subject are expressly reserved to the states. Mcpherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. 3, 36 L. Ed. 869; Pope v. Williams, 193 U. S. 621, 24 Sup. Ct. 573, 48 L. Ed. 817.

In the case last cited the Supreme Court of the United States say:'

"The privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the federal Constitution."

The word "appoint" as employed in subdivision 2 has been interpreted to be sufficiently comprehensive to include the result of a popular election and to convey the broadest powers of determination. McPherson v. Blacker, 146 U. S. 1, 27, 13 Sup. Ct. 3, 36 L. Ed. 869.

The language of section 1, subd. 2, is clear and unambiguous. It admits of no doubt as to where the constitutional power of appointment is vested, namely, in the several states. "Each state shall appoint in such manner as the Legislature thereof may direct" are the significant words of the section, and their plain meaning is that each state is thereby clothed with the absolute power to appoint electors in such manner as it may see fit, without any interference or control on the part of the federal government, except, of course, in case of attempted discrimination as to race, color, or previous condition of servitude under the fifteenth amendment. The clause, "in such manner as the Legislature thereof may direct," means, simply that the state shall give expression to its will, as it must, of necessity, through its law-making body, the Legislature. The will of the state in this respect must be voiced in legislative acts or resolves, which shall prescribe in detail the manner of choosing electors, the qualifications of voters therefor, and the proceedings on the part of the electors when chosen.

But these acts and resolves must be passed and become effective in accordance with and in subjection to the Constitution of the state, like all other acts and resolves having the force of law. The Legislature was not given in this respect any superiority over or independence from the organic law of the state in force at the time when a given law is passed. Nor was it designated by the federal Constitution as a mere agency or representative of the people to perform a certain act, as it was under article 5 in ratifying a federal amendment, a point more fully discussed in the answer to the question concerning the federal prohibitory amendment. 107 Atl. 673. It is simply the ordinary instrumentality of the state, the legislative branch of the government, the law-making power, to put into words the will of the state in connection with the choice of presidential electors. The distinction between the function and power of the Legislature in the case under consideration and its function and power as a particular body designated by the federal Constitution to ratify or reject a federal amendment is sharp and clear and must be borne in mind.

It follows, therefore, that under the provisions of the federal Constitution the state by its legislative direction may establish such a method of choosing its presidential electors as it may see fit, and may change that method from time to time as it may deem advisable; but the legislative acts both of establishment and of change must always be subject to the provisions of the Constitution of the state in force at the time such acts are passed and can be valid and effective only when enacted in compliance therewith.

In the exercise of the power thus conferred by the federal Constitution, various methods of electing presidential electors were adopted in the early days by the several states, as set forth in detail in McPherson v. Blacker, 146 U. S. at pages 29 to 35, 13 Sup. Ct. 3, 36 L. Ed. 869.

In our own state the same holds true to a certain extent. Prior to 1847 the legislative direction expressed itself in the form of a joint resolution, passed every fourth year, at the...