Kinneen v. Wells

• Decision Date: 11 May 1887
• Citation: 11 N.E. 916,144 Mass. 497
• Parties: KINEEN v. WELLS and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 497

11 N.E. 916

KINEEN v. WELLS and others.

Supreme Judicial Court of Massachusetts, Middlesex.

May 11, 1887

COUNSEL

C.T. Russell, Jr., for plaintiff.

Since the royal charter of 1691 the right to vote in Massachusetts has been fixed by organic law, and the general court deprived of any jurisdiction to add to or abridge the qualifications of voters. See article 3, Amend. Const. A reading and writing qualification was established in 1857 by article 20, Amend. Const. See article 9, Decl. Rights. It will be seen that all the qualifications for voters are definitely fixed and limited by the constitution itself. They are clear and precise. All of them must exist as prerequisites to the right to vote, and whoever possesses them has the right vested in him by the constitution. The constitution nowhere gives to anybody, legislative, judicial, or executive, any right to provide additional or alter present qualifications. The power conferred upon the legislature is to make, ordain, and establish "all manner of wholesome and reasonable orders, laws, statutes; *** so as the same be not repugnant or contrary to this constitution." Statute law must necessarily, be subordinate to the provisions of the constitution, and no legislative enactment can, in any way change or increase these qualifications, or deprive any person of the right of suffrage vested in him by the constitution. Any such enactment is unconstitutional and void. Blanchard v. Stearns, 5 Metc. 298, 301; Capen v. Foster, 12 Pick. 485; Williams v Whiting, 11 Mass. 424, 433; Opinion of Justices, 5 Metc. 592.

In accordance with these early and authoritative expressions of opinion, the qualifications of voters have always, in innumerable cases, been regarded as matter for judicial decision, involving merely the construction of the constitution, and not as matter within legislative control. By his naturalization the plaintiff became, eo instanti, a citizen of the United States, and of this commonwealth. Morse, Citizenship, § 98; Campbell v. Gordon, 6 Cranch, 182; Spratt v. Spratt, 4 Pet. 407. Having, then, all the qualifications of a voter required by the constitution, he was entitled to registration upon equal terms with other voters, as a constitutional right, of which no statute could deprive him. Possession of the necessary qualifications at the time of voting or registration has always been regarded as sufficient, without regard to the length of time the voter has possessed them. To require the existence of the qualifications for any period before the election is necessarily to alter and increase such qualifications. Bridge v. Lincoln, 14 Mass. 367; Opinion of Justices, 122 Mass. 594; Opinion of Justices, 124 Mass. 597; Humphrey v. Kingman, 5 Metc. 162, 165; Kilham v. Ward, 2 Mass. 235. See Morgan v. Dudley, 18 B. Mon. 693, 725; Wood v. Fitzgerald, 3 Or. 568; Com v. Peltz, 1 Brewst. 158; Election Registry Acts, 2 Brewst. 138.

If, then, as matter of fact and constitutional construction, the plaintiff had the qualifications of a voter, he was then, by the constitution, equally entitled with other voters to registration. No legislative action could postpone the exercise of the right, without "altering or modifying by law" his qualifications as prescribed by the constitution, and depriving him of his "equal right to elect officers." Cooley, Const.Lim. (5th Ed.) 78; McCrary, Elect. § 5.

No statute, even under the form of regulation of the exercise of the right, can abridge or suspend the right itself. The distinction was recognized, and the test established, in the leading case of Capen v. Foster, 12 Pick. 485. The power of the legislature is there limited to suitable, reasonable, and impartial provision for the ascertainment of what persons possess the constitutional qualifications of voters. That limitation, established by Capen v. Foster, has been accepted without exception. Wherever the legislature has attempted, in whatever form, or under whatever pretense, to increase or change the qualifications of voters, the court has declared the act unconstitutional and void. On this ground, an act of the Pennsylvania assembly providing that no deserter from the army should vote, was held void. McCafferty v. Guyer, 59 Pa.St. 109. See, also, Barker v. People, 20 Johns. 457; Rison v. Farr, 24 Ark. 161; Clayton v. Harris, 7 Nev. 64; St. Joseph R.R. v. Buchanan Co., 39 Mo. 485; State v. Staten, 6 Cold. 233.

The principle is ably and elaborately discussed in the several decisions in this country that acts of the various legislatures, permitting soldiers in the service out of the state to vote, were unconstitutional. Day v. Jones, 31 Cal. 261; Twitchell v. Blodgett, 13 Mich. 127; Chase v. Miller, 41 Pa.St. 403; Opinion of Judges, 30 Conn. 591; Opinion of Judges, 37 Vt. 665. Applying the test established in Capen v. Foster, it is submitted that the statute in question does not regulate the mode of ascertaining the qualifications of voters or of conducting the election. The statute simply adds another qualification to those prescribed by the constitution, namely, that a citizen, if he becomes such by naturalization, shall have been a citizen at least 30 days before registration. Opinion of Justices, 122 Mass. 594. If this opinion of the justices be law, and this statute be valid, then persons may be eligible to election to the senate or house of representatives for 30 days or more before they can become voters. See Opinion of Justices, 124 Mass. 596. The case is similar in principle to those where registration laws have been held unconstitutional because they extend the period required by the constitution. Page v. Allen, 58 Pa.St. 338; State v. Williams, 5 Wis. 308; Quinn v. State, 35 Ind. 485; People v. Canaday, 73 N.C. 198.

If this statute be regarded as a regulation of the mode of ascertaining the qualifications of voters it is equally unconstitutional. Capen v. Foster, 12 Pick. 485. See McCrary, Elect. § 8; Cooley, Const.Lim. (5th Ed.) 756; and see Monroe v. Collins, 17 Ohio St. 665, 686; State v. Lean, 9 Wis. 279; State v. Baker, 38 Wis. 71; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28 Iowa, 267; State v. Butts, 31 Kan. 537, 2 P. 618.

If the legislature can impose certain restrictions upon one class of voters, and exempt another, what is the limit to its discretion? Can it apply certain restrictions, as to time of registration, upon negroes, or Irishmen or Germans, and exempt other citizens from such restrictions. Can citizens by naturalization be treated differently in our election statutes from citizens by birth? If so, the decision in Capen v. Foster must be overruled, and the constitutional guaranty of "equal right" in voting among our citizens disregarded. This legislative discrimination is based upon nationality. It draws the line between native-born and naturalized citizens. If this discrimination be one of race, the statute is void, under the fifteenth amendment to the constitution of the United States, providing that "the rights of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude."

C.J. McIntire, for defendants.

Suffrage is not a natural, unlimited right. The privilege of voting arises under the constitutions of the several states, and excepting as is provided by the fifteenth amendment of the constitution of the United States, the qualifications of the voter are exclusively within the regulation and control of each state. U.S. v. Anthony, 11 Blatchf. 200; Spencer v. Board of Registration, 1 MacArthur, 169; Cooley, Const.Law, 248-250. Article 3 of amendments to the constitution of Massachusetts prescribes the qualifications of a voter; but the constitutional provisions do not limit the right of the legislature to make such reasonable regulations and conditions concerning the exercise of the franchise as will protect the privilege, and prevent imposition and fraud. It seems to be well settled that the legislature has the legal power to require the voter to register his name upon a registry of voters previous to the day of election, and to provide that, unless he has conformed to such requirement, he shall not be permitted to vote. Capen v. Foster, 12 Pick. 485; Davis v. School-District, 44 N.H. 404; Hyde v. Brush, 34 Conn. 454; People v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425; State v. Hilmantel, 21 Wis. 574; State v. Baker, 38 Wis. 71; Patterson v. Barlow, 60 Pa.St. 54; In re Polling Lists, 13 R.I. 729; People v. Hoffman, (Ill.) 5 N.E.Rep. 596, 611; Cooley, Const.Lim. 757; Cooley, Const.Law, 252; State v. Butts, 31 Kan. 537, 2 P. 618; Daggett v. Hudson, 43 Ohio St. 548; McCulloch v. Maryland, 4 Wheat. 413; 3 Story, Const. 122; 1 Kent.Comm. 250.

So a statute providing that a naturalized citizen shall not be entitled to be registered as a voter until he has been naturalized 30 days is a reasonable regulation to protect the public from possible fraud of the applicant in obtaining his certificate of naturalization. See Acts 1885, c. 345, § 7, which contains other conditions and precautions, all of which are within the power of the legislature to make, and are not repugnant to the third amendment of the constitution of this commonwealth. Such is not in contravention of article 14 of amendments to the constitution of the United States as an abridgement of the privilege of citizens of the United States. Cooley, Const.Lim. 599-601; 1 Story, Const. 577, 582; U.S. v. Anthony, supra.

OPINION

DEVENS, J.

The case at bar is an action of tort against the registrars of voters in the city of Cambridge, to recover damages for wrongfully refusing, as the plaintiff alleges, to register him as a voter for the state election of 1886. The demurrer to the plaintiff's declaration...