Page v. Allen

• Decision Date: 02 July 1868
• Parties: Page et al. v. Allen et al. Robb et al. v. Barlow et al.
• Court: Pennsylvania Supreme Court

58 Pa. 338

Page et al. v. Allen et al.

Robb et al. v. Barlow et al.

Supreme Court of Pennsylvania.

July 2, 1868

June 3, 1868

1. The Act of April 4th 1868 (Registry) is unconstitutional.

2. The interest of a taxpayer where money is to be raised by taxation or expended from the treasury, entitles him to test in equity the validity of the law which proposes the taxation or expenditure.

3. The inhibitions of the constitution as to legislation are to be regarded as well when they arise by implication as by expression. This is the case where the legislation is repugnant to some provision of the constitution.

4. The expression of one thing in the constitution is the exclusion of things not expressed.

5. Exceptions strengthen the force of a general law, and enumeration weakens it as to things not expressed.

6. The constitution is to be understood in its plain untechnical sense.

7. For the orderly exercise of the rights of voters under the constitution the legislature must prescribe necessary regulations as to whatever may be required to insure its full and free exercise: but the regulation must be subordinate to the right.

8. No constitutional qualification of a voter can be abridged added to or altered by legislation.

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.

Their object was to test the constitutionality of the Registry Law of the 4th of April 1868.

The first was by James Page and others, citizens and voters of the commonwealth and residents in Philadelphia against James Allen and sixty-four others, Aldermen of the city of Philadelphia, to whom were afterwards added by amendment Joseph N. Peirsol, Treasurer, and Joseph R. Lyndall Controller of the city.

The other bill was by Charles Robb and others, citizens, & c against Thomas A. Barlow and others, members of the Select Council of Philadelphia; George W. McTague and others members of the Common Council, David P. Weaver and others, City Commissioners, and the above-mentioned Treasurer, Controller and Aldermen.

The bill sets out:--

1. The passage of the act.

2. That the first 11 sections and the first paragraph of the 12th provide a system of registration of voters, throughout the commonwealth, which sections, although repugnant to the constitution, are modified by devolving the duties on officers chosen for assessment and election duties, representing a majority of their constituents in their election districts, but that the 12th and subsequent sections, in violation of section 5, article 3 of the constitution, enact an unequal discrimination against electors in Philadelphia, by limiting the right of voting to voters named in lists by canvassers selected on political grounds, for the purpose of excluding citizens whose names shall not appear on the lists, although they may be qualified voters.

3 and 4. That by section 12 the aldermen of Philadelphia are made a board to appoint three canvassers for each election district, all of whom shall not be of the same political party; and that there are 65 aldermen and 266 election divisions. The act therefore provides for an election by a political vote of 798 canvassers who are to be paid $5 per day each, & c.; averring that the aldermen are not elected to appoint canvassers, & c.

5. That by the 13th section the canvassers shall meet on the first Monday of September in each year, at the place of holding elections in said divisions, and on that and the next two days make a list of persons known to them to be qualified electors, who have voted at any preceding general election therein; that the canvassers shall make affidavit that the list " is a true list of the voters in said election division, who have theretofore voted in said election divisions, so far as the same are known to them; " that copies shall be posted with a notice that the canvassers will meet on the 12th day preceding the general election, and for two days ensuing to correct and complete the lists.

6. That a majority of the canvassers may exclude from voting, without appeal, such citizens as they may choose; that the voters placed on the list are limited to those of whom they have personal knowledge, excluding evidence of witnesses; that thereby the number inscribed on the list will be so few, and the additions to be made at the subsequent meeting so numerous and the impediments so great, as to make it physically impossible that voters should all have an opportunity of voting.

7, 8 and 9. That by the 14th section the canvassers are to meet on the 12th, 11th and 10th days before the general election, and correct the list by striking off those who have died or removed, and adding any one who shall prove himself a qualified elector; the latter shall produce a voter as a witness of his residence for a period of ten days before the election, and the witness shall subscribe an affidavit, & c., and the last meeting being on the 10th day preceding the election, it is impossible then to ascertain whether a claimant has resided in the district ten days before the election.

10. That the residence of ten days before the election, & c., qualifies the claimant, which could not be proved till the day of the election, and the provisions of the act requiring a decision before the fact exists and imposing an infamous punishment, prevent that and are unconstitutional.

11. That the provision of the 15th section that the lists shall be delivered to the officers of the election ten days before the election, and shall be the only evidence of the claimant's right, is unconstitutional as it would exclude voters who had resided in the district ten days, and were not on the list.

12 and 13. The 14th section further provides that the claimant shall make an affidavit as to the time and place of his birth, and if naturalized when and by what court, and present his certificate of naturalization, unless he has been a voter in the district five years and has resided in the Commonwealth one year, or if having removed therefrom has resided six months before the election, has not moved into the division for the purpose of voting, and has not been registered elsewhere; that these provisions are unconstitutional because they deprive voters of their votes unless their names are on the list, require them to subscribe an affidavit, add onerous duties to the canvassers, impose burdens of written affidavits with time so limited that the right of suffrage is put in peril, obstructed and denied; that the constitution does not require any voter's name to be put on a list, and therefore by implication it is forbidden; that the act preventing a citizen enjoying the qualifications in the constitution, from voting because his name is not on the list; that requiring the affidavit of a claimant that he is a citizen of the United States and of Pennsylvania, would exclude citizens between twenty-one and twenty-two years, who have resided in the state one year and the district ten days from voting, and that requiring the claimant to present his certificate of naturalization to the board of canvassers, are void.

14. That the 15th section provides that receiving a vote from persons not so proved to be qualified shall be a misdemeanor in the election officers; that this is against the 3d article of the constitution, tending to prevent qualified persons from voting and threatening the officers; laying down other qualifications than the constitution, requiring proof which in many cases is physically impossible; requiring claimants to make affidavits and produce a witness who shall make affidavit of the right to vote, & c.; that on completing the list after 7 o'clock on the tenth day preceding the election, the canvassers shall make four copies of the list, one for the canvassers who shall immediately assess a tax on every one in the list, and by reason thereof the tax cannot be assessed till after the tenth day before the election.

15. That the 17th section provides for similar requisitions in relation to the election for electors for President, and there is no provision in the act in regard to persons sick or otherwise unavoidably prevented.

16 and 17. That by the act a voter cannot enjoy the rights of an elector unless a political majority of the canvassers shall insert his name, & c., and the right of suffrage of those in the lists of the canvassers is further restricted by the judgment of a central board of aldermen.

18. That a similar act has been construed by a former legislature to be unconstitutional.

19. Sets out the citizenship and residence of the plaintiffs and qualification as voters, interested in the maintenance of the constitution and the selection of officers by whom they are to be governed and taxed, and their fear that they and other voters shall be deprived of the right of voting at the next and subsequent elections, & c.

20. That the aldermen (defendants) are to constitute the board of appointment of canvassers.

The bill was amended by adding averments that the plaintiffs are taxpayers in Philadelphia, and the act will subject the city to an illegal burden of more than $60,000 in the current year.

The averments and allegations contained in the other bill are substantially as in the first.

The prayers were for an injunction restraining the defendants from exercising the powers under the Act of Assembly, or decree declaring the act unconstitutional, & c.

The act provides,

1. That the assessors shall make a list of white freemen over twenty-one years known or claiming to be voters, and opposite their names shall state whether they are housekeepers, and if so, their number, street, & c.; if no numbers, the streets,...