Page v. Allen
| Decision Date | 02 July 1868 |
| Citation | 58 Pa. 338 |
| Parties | Page <I>et al. versus</I> Allen <I>et al.</I> Robb <I>et al. versus</I> Barlow <I>et al.</I> |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.
These were two bills brought to July Term 1868, in the Supreme Court for the Eastern District, sitting in equity.
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G. W. Biddle and W. L. Hirst, for Page et al., plaintiffs, referred to Chase v. Miller, 5 Wright 403; Com. v. Maxwell, 3 Casey 461; Catlin v. Smith, 2 S. & R. 267. Registry laws which exist in Rhode Island, New York, Louisiana and Florida are recognised in their constitutions. Under the Massachusetts, Maine and New Hampshire laws names may be added on the morning of the election and after voting commences: Waite v. Woodward, 10 Cushing 143; Bacon v. Benckley, 3 Id. 100; Capen v. Foster, 12 Pick. 485.
F. Sheppard and H. M. Phillips, for Barlow et al., plaintiffs referred to Sharpless v. Philadelphia, 9 Harris 167; Mott v. Penna. R. R., 6 Casey 24; Ewing v. Thompson, 7 Wright 379; Kerr v. Trego, 11 Id. 295, as to plaintiffs' equity.
As to right of courts to declare an act unconstitutional: Cronise v. Cronise, 4 P. F. Smith 255; Jones v. Jones, 2 Jones 350; Eakin v. Raub, 12 S. & R. 330; People v. Johnson, 6 Cal. 499. The Act of 1868 is unconstitutional: Chase v. Miller, Commonwealth v. Maxwell, supra; Brown v. Hummel, 6 Barr 86; Commonwealth v. Mann, 5 W. & S. 420; Leib v. Commonwealth, 9 Watts 200; Kelly v. State, 6 Ohio, N. S. 269; 3 Debates in Convention of Pennsylvania 77, 157. Judicial officers can be compelled to perform none but judicial acts: Hayburn's Case, 2 Dall. 410; Kuhn v. Bank U. S., 2 Ashm. 173; Penn Square Case, MS.; Griffith v. Cochran, 5 Binn. 87; Commonwealth v. The Judges, 3 Binn. 275.
W. B. Mann and W. H. Rawle, for defendants.—As to the equity of plaintiffs: Sharpless v. Phila., supra; Frewin v. Lewis, 1 Mylne & Cr. 254; Hill v. Kensington, 1 Parsons 501.
The legislature has jurisdiction in all cases not prohibited: Weister v. Hade, 2 P. F. Smith 477; Commonwealth v. McCloskey, 2 Rawle 374; Commonwealth v. Hartman, 5 Harris 119; Kirby v. Shaw, 7 Harris 200; Sharpless v. Philadelphia, supra; Booth v. Town of Woodbury, 32 Conn. 118; Bank v. Brown, 26 N. Y. (Ct. of App.) 469; Baker v. City of Cincinnati, 11 Ohio St. Repts. 543; Lehman v. McBride, 15 Id. 591; Morrison v. Springer, 16 Iowa 304; Nogues v. Douglass, 7 Cal. 69.
As to the constitutionality of a registry law they referred to the registry laws of Massachusetts, Maine, New Hampshire, Rhode Island, New York, Louisiana and Florida: Capen v. Foster, supra; Davis v. School District, 44 N. Hamp. 404; Auld v. Walton, 12 Louis. Ann. 141.
They referred also to the "Frame of Government," Penna. 1796; Acts of 1705, 1724, 1745, 1766, 1785; Constitutions of 1766 and 1789; Act of 1799, Purd. (Ed. 1818) 150; Registry Law of June 16th 1836, Pamph. L. 602. The aldermen can be compelled by mandamus to act: Lamb v. Lynd, 8 Wright 336; Chase v. Miller, supra. A law whose effect is to disfranchise a voter is not for that very reason unconstitutional: Huber v. Reilly, 3 P. F. Smith 116.
The opinion of the court was delivered, July 2d 1868, by THOMPSON, C. J.
The first of these bills was filed by the plaintiffs, residents, taxpayers and qualified voters of this city, against the defendants, the aldermen of the city, to restrain them from exercising certain powers and authority in their aggregate capacity; which, it is alleged, they claim to be conferred upon them by the provisions of an Act of Assembly, passed April 4th 1868, entitled "A further supplement to the act relating to the elections of the commonwealth," and from appointing or attempting to appoint canvassers as directed in and by the said act; or from interfering or intermeddling with, or obstructing or attempting to obstruct, the qualified voters of this commonwealth, by any act or means whatever, from the enjoyment of the rights of electors secured to them by the constitution of the commonwealth. The second bill is to the same effect by parties possessing like qualifications, and including as defendants the members of Select and Common Councils of the city, the City Commissioners, Controller and Treasurer of the city, as well as the Aldermen.
These bills question the constitutionality of the Act of Assembly referred to, and familiarly known as the "Registry Act," and charge, among other matters, that a large sum of money will be required from the city treasury to put the act into operation, which, as taxpayers, they are interested to prevent, and which would be wholly misapplied, the act being, as they allege, unconstitutional and void. The right of the plaintiffs to interfere on these grounds was not disputed, neither do I think it could have been at any time since the decision in Sharpless v. The Mayor, &c., 9 Harris 147, and Moers v. The City of Reading, Id. 188. In both, it was conceded that the interest of a taxpayer, where money was to be raised by taxation, or expended from the treasury, was sufficient to entitle him to proceed in equity to test the validity of the law which proposed the assessment or expenditure. To this effect is Mott v. The Pennsylvania Railroad Co., 6 Casey 9. That we have power to enjoin the respondents has not been disputed. The cases of Kerr v. Trego, 11 Wright 292, Irving v. Thompson, 7 Id. 379, if authority were wanting, would be sufficient for this.
The power of this court and its duty to declare an Act of Assembly unconstitutional, if it be plainly so, is no more to be doubted than its power to declare an instrument of writing void for want of due execution. This power is not disputed. What shall be the test of want of constitutional sanction, is a question of more or less difficulty in all cases involving it. It is usual on the part of those who insist on the constitutionality of any given statute, to claim that it must be regarded as constitutional, unless expressly prohibited by some provision in the constitution. In other words, in construing the constitution of the state, whatever is not expressly denied to the legislative power is possessed by it. The opposite of this rule, I may remark, is the rule of construction of the Federal Constitution. I assent to this, but not that the inhibitions of the constitution must be always express. They are equally effective, and not less to be regarded, when they arise by implication, and this is the case when the legislative provision is repugnant to some provision of the constitution, 9 Watts 200; 5 W. & S. 424; 12 S. & R. 330; 3 Casey 444; 5 Wright 403. To illustrate this idea: The executive power of the state under the constitution is lodged in a governor, and the legislative in a senate and house of representatives. It would be manifestly repugnant to these provisions of the constitution if an Act of Assembly should provide for the election of two executives, or two senates and houses of representatives at the same election; yet it would be unconstitutional only by implication, there being no express prohibition on the subject. So in regard to qualification for office. An act which should require a residence in the state for ten years, instead of three, or an age of fifty years, or freehold estate, in order to be eligible to the office of representative, would be void for repugnancy, because differing from the qualification expressed in the constitution, and would be so only by necessary implication; necessary to keep legislation within the paramount rules of the constitution. The expression of one thing in the constitution, is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions, declaratory in their nature. The remark of Lord Bacon, "that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated," expresses a principle of common law applicable to the constitution, which is always to be understood in its plain, untechnical sense: Commonwealth v. Clark, 7 W. & S. 127.
These instances illustrate the principle of the authorities, which hold, that acts repugnant to the constitution are void by implication, and at the some time they also illustrate the inquiry in the case in hand, whether this act is constitutional.
In Article III., Section 1. The constitution declares,
These are the constitutional qualifications necessary to be an elector. They are defined, fixed and enumerated in that instrument. In those who possess them is vested a high, and to freemen, sacred right, of which they cannot be divested by any but the power which established them, viz.: The people, in their direct legislative capacity. This will not be disputed.
For the orderly exercise of the right resulting from these qualifications, it is admitted that the legislature must prescribe necessary regulations, as to the places, mode and manner, and whatever else may be...
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