Morris v. Powell

• Decision Date: 08 October 1890
• Docket Number: 15,600
• Citation: 25 N.E. 221,125 Ind. 281
• Parties: Morris et al. v. Powell
• Court: Indiana Supreme Court

25 N.E. 221

125 Ind. 281

Morris et al. v. Powell

No. 15,600

Supreme Court of Indiana

October 8, 1890

From the Henry Circuit Court.

Judgment affirmed, with costs.

C. S Hernly, for appellants.

M. E Forkner and A. C. Harris, for appellee.

Olds J. Mitchell, J. Elliott, J.

OPINION

Olds, J.

This action was brought by Simon T. Powell against Joshua I. Morris, auditor of Henry county, and William H. Elliott, to enjoin the payment of an account for books furnished the county for registering votes under section 13 of the election law of 1889 (Acts of 1889, p. 162; Elliott's Supp., section 1335), and it involves the validity of said section.

A demurrer was filed by the appellants to the complaint, and overruled, and he refusing to plead further, judgment was rendered on demurrer in favor of appellee.

The section of the law reads as follows:

"Section 13. Each elector shall vote, by ballot, in the precinct wherein he resides. Any person, who, having been a resident of Indiana, shall have absented himself from the State for a period of six months or more, or who shall have gone into any other State or sovereignty with the intention of voting therein, or during any absence in another State or sovereignty shall have voted therein, and, also, any person who shall not have been a bona fide resident of this State and of the county in which he resides, at least six months before any election, shall, before being entitled to vote at any election in this State, register a notice of his intention to become a qualified elector therein, in the office of the clerk of the circuit court of the county in which he resides. Whoever shall be absent from the State for a period of six months or more on business of the State or of the United States, shall, at the time he offers to vote, produce a certificate from the county auditor that his name has continuously, since his departure from the State on such business, been upon the tax duplicate of said county for the purpose of taxation, during his absence from the State, and that he is still a taxpayer in said county; and failing to produce such certificate such person shall not be permitted to vote. Such registration shall be made at least three months prior to any such election, and the notice shall state such person's name, age and place of residence (by which shall be understood his lodging place), and the notice shall be in the form following, and sworn to before such clerk:

"State of Indiana, ----- County,

ss:

"I, ----- -----, the subscriber hereto, hereby declare my intention to become a qualified elector under the laws of Indiana; that I was ----- years of age on my last birthday; that my lodging place is now ----- ----- ----- (here insert exact location); and I am a bona fide resident of the precinct in which I lodge: Provided, That the provisions of this section respecting such registration and notice shall not apply to any voter who, six months or more previous to any election, shall have registered with said clerk a notice declaring his intention to hold his residence in this State during a contemplated absence, and that during such absence he will not exercise the right of suffrage elsewhere, and which notice shall be as follows, and shall be sworn to before said clerk:

"State of Indiana, ----- County,

ss:

"I, ----- -----, the subscriber hereto, a qualified voter of ----- ----- (here insert the name of his precinct, ward, township, town and city), in said county, intending to absent myself, do hereby declare my purpose to hold my residence as a voter in said State, and that I will not exercise the right of suffrage elsewhere during my absence.

"----- -----.

"On the filing of any notice, as provided for in this section, it shall be the duty of such clerk to enter the name and residence of said elector and date of the filing of said notice in a book furnished for said purpose, to be open at all times to the inspection of the public, and safely preserve said original notice and deliver a certified copy of the same to the elector so registering, and on demand of any challenger or member of the election board such elector shall be requested to produce the same before being allowed to vote. No person shall register for any other person, or in the name of any other person, or present the copy of the register for any other person at a polling place, or induce, hire or advise any other person not to register who may be required to register as above. Any person violating the provisions of this section, or who shall vote, or attempt to vote, without having been registered, when required to do so as above, shall be guilty of a felony, and, upon conviction, shall be imprisoned in the State prison for not less than one nor more than five years, and be disfranchised for any determinate period. No elector shall be at any cost or charge for such registration or certificate thereof; and the clerk shall be allowed twenty-five cents, and no more, for each registration and certificate thereof, to be in full for all services connected therewith, which allowance shall be made out of the county treasury by the board of county commissioners, on itemized statements sworn to by said clerk."

Article 2, section 1, of the Constitution of this State declares that "All elections shall be free and equal," and section 2 of the same article defines, in unambiguous language, who shall be entitled to vote.

Section 2. "In all elections not otherwise provided for by this Constitution, every male citizen of the United States, of the age of twenty-one years and upward, who shall have resided in the State during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and every male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this State during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote in the township or precinct where he may reside, if he shall have been duly registered according to law."

Section 4, of the same article, provides that "No person shall be deemed to have lost his residence in the State by reason of his absence, either on business of this State or of the United States."

Under the Constitution a person must have certain qualifications to entitle him to vote, viz.: He must be a male citizen of the United States or if of foreign birth, must have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, and have resided in the United States one year. He must be twenty-one years of age, and have resided in this State six months, and in the township sixty days, and in the precinct thirty days, and he must be duly registered according to law providing for the registration of voters. If a person possess all of these qualifications he is entitled to vote, but if there be any one of these qualifications which he does not possess then he is not entitled to vote, except if there be no legally enacted statute providing for the registration of voters, then he is exempted from the duty of registering, or rather the voters of the State can not be disfranchised by reason of the failure of the Legislature to comply with the constitutional mandate. In 1881 the electors of the State by a majority vote of over eighty-seven thousand, amended section 14 of article 2 of the Constitution so as to provide that the "General Assembly * * shall provide for the registration of all voters entitled to vote," and it is by reason of an omission or a refusal on the part of the General Assembly to obey and comply with this constitutional mandate that the voters of the State have exercised the right of suffrage without registration since the adoption of this amendment. That the General Assembly has the power to enact a law providing for a uniform system of registration of all voters, we think, can not be controverted, and that it is made the duty of the General Assembly by the Constition to enact a law providing a reasonable, uniform and impartial system for the registration of all voters must be conceded, but section 13 of the present law imposes certain duties upon certain classes of voters, and requires certain qualifications of another class, while a much larger portion is not included within its provisions or affected thereby. The question is presented as to whether or not the Legislature can impose the obligations which it seeks to do by this section on the class of voters therein specified, and to another class add a qualification not required by the Constitution to entitle them to vote.

This section attempts to impose an obligation upon all persons who, being residents of the State of Indiana, shall absent themselves from the State for a period of six months or more or who shall have gone into any other State or sovereignty with the intention of voting therein, or who, during an absence in another State or sovereignty, have voted therein, and upon all persons who shall not have been bona fide residents of this State and of the county in which they reside at least six months before any election, the duty of registering a notice of their intention to become qualified electors in their respective precincts in the office of the clerk of the circuit court of the county in which they reside at least three months prior to any such election, and makes it a felony, punishable by imprisonment in the...