Patterson v. Barlow

• Decision Date: 07 July 1869
• Citation: Patterson v. Barlow, 60 Pa. 54 (Pa. 1869)
• Parties: Patterson <I>et al. versus</I> Barlow <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 54

60 Pa. 54

Patterson et al. versus Barlow et al.

Supreme Court of Pennsylvania.

July 2 and 3, 1869.

July 7, 1869.

July 2d and 3d 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

This was a bill in equity, filed in the Supreme Court on the 4th of June 1869, by William C. Patterson and others against Thomas A. Barlow and others, members of the Select Council of Philadelphia; William Calhoun and others, members of the Common Council; Thomas Dallas and others, aldermen and justices of the peace; David P. Weaver and others, city commissioners; George Getz, City Controller, and Joseph N. Peirsol, City Treasurer.

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C. Gibbons and Meredith, for the appellants.—The plaintiffs have no standing. It is a public law, the plaintiffs are private citizens and have no more interest than the public generally; it appears by their bill and the act that it is impossible for them to sustain injury by the operation of the law. They must show private damage beyond the public at large: Georgetown v. Alexandria Canal Company, 12 Peters 91; Irwin v. Dixion, 9 How. 28; Sparhawk v. Union Passenger Railway, 4 P. F. Smith 401; Rhodes v. Dunbar, 7 Id. 274. The same rule applies to a quo warranto: Murphy v. Bank, 8 Harris 415; Burrell's Case, 7 Barr 34; Commonwealth v. Farmers' Bank, 2 Grant 392. In Sharpless v. Philadelphia, 9 Harris 147, the act was not a public or political law.

The court has not jurisdiction. Regulating elections belongs to the legislature: Charter of 1683; Constitution of 1776, § 18, 24, 31; Constitution of 1790. Such power would have enabled judges to prevent elections by setting aside the laws at pleasure. The Bill of Rights of 1776, Article 6, provides against legislative or executive oppression. The schedule to the amendments of 1838 continued laws in force, and the exclusive right of the legislature to regulate elections was perpetuated.

If the court can restrain the operation of a political law, they can enjoin the legislature from passing it: Mississippi v. Johnson, 4 Wallace 475.

The law is constitutional. It does not contravene the principle that "all elections shall be free and equal." This does not mean that all elections shall be uniform. "Free" here means without unlawful obstruction, intimidation or corruption: Laws agreed on in England 1682, 2 Proud's Hist. of Penna., Appendix 15, § 3; Laws passed at Chester July 7th 1862, Hazard's Annals 633, § 66; Bill of Rights 1776, § 7; Constitution of 1776, § 17, 18, 32 ("Conventions of Penna." 56, 62); 2 Dallas' Laws 351, § 26, 27; Charter of 1683, Article 16, Conventions of Penna., p. 23, § 16 note; Constitution of 1790, § 5. In the convention of 1838 it was attempted to prevent restrictions in Philadelphia from being different from other parts of the state, but it was refused by a vote of 69 to 42. On the principle contended for nearly all the election laws beginning with 1785 have been and are unconstitutional. The Act of 1785 limits the Northern Liberties to one inspector whilst there were two elsewhere; voters in Bedford county when absent attending court, might vote at the court-house; polls were to remain open longer in Philadelphia than elsewhere; in the counties of Westmoreland, Washington and Fayette voters having taken the oath of allegiance in Virginia might vote without taking the test oath as required from others; judges of election shall be appointed by justices of the peace. Act of 1786, § 6, 2 Dallas' Laws, p. 459, allowed special privileges, as to voting, to clergymen, mechanics, manufacturers and schoolmasters. A registry law is constitutional: Page v. Allen, 8 P. F. Smith 338.

C. J. Tilghman suggested a registry law: Catlin v. Smith, 2 S. & R. 269.

H. M. Phillips and W. L. Hirst (with whom was G. W. Biddle).—It may be added to the grounds stated in the opinion of Judge Sharswood, that the act subverts the organic provisions of the Constitution relating to the legislative department of the government. The amendment of 1857 provides that representatives to the number of one hundred shall be apportioned and distributed equally throughout the state by districts in proportion to the number of "taxable inhabitants," in the several parts thereof. The senate is founded on the same basis of representation. The recent Registry Act excludes all but "qualified voters" from the assessment lists, and in effect strikes out from the Constitution the words taxable inhabitants, and substitutes qualified voters, a class less numerous, and thus reduces the representation due to Philadelphia. The assessment laws have recognised the distinction, requiring assessors to assess all "white freemen," Purdon, page 371, pl. 12; page 392, pl. 191; and the city assessors are regulated accordingly: Purdon, page 944, pl. 94 and 97. The city councils are constituted on the same basis in the Consolidation Act, § 2.

The opinion of the court was delivered, July 7th 1869, by AGNEW, J.

We regret that the necessity for an immediate decision in this case has allowed so short a time for the preparation of our opinion; and that the public character of the questions demands a treatment too full to be compatible with brevity.

The plaintiffs are private citizens, electors of the Commonwealth, tax-payers, and holders of real estate in the city of Philadelphia. By their bill they ask us to declare illegal and void an Act of the General Assembly passed the 17th of April 1869, supplementary to the election laws of the Commonwealth; and to enjoin the councils, aldermen, commissioners, controller, and treasurer of the city from carrying its provisions into effect. The defendants deny the standing of the plaintiffs as proper parties, and the jurisdiction of the court over the subject. In view of the danger to the peace and quiet of the people, if the constitutionality of this law should be left in uncertainty, we shall pass by the questions of standing and jurisdiction, in order to reach the all-important one upon the validity of the law. In passing them by, we do not mean it to be inferred that we have not grave doubts of the right of the plaintiffs to represent the public, and of our own jurisdiction to enjoin against one of the political systems of the state in its entire scope, because of the invalidity of some of its provisions. We doubt the right of the plaintiffs to call for an injunction beyond that portion of the law, which they, as private citizens, can show to be injurious to their own rights; and it is more than doubtful how far as private citizens they can impugn the law in its public aspects, and ask us to restrain its execution on public grounds. This is the only system to regulate elections intended by the legislature to be left in force; all laws supplied by it and all inconsistent with it being expressly repealed. If as a court of equity we can lay our hands on the whole system because of the illegality of some of its parts, we can, on the eve of any election, arrest the entire political machinery of the Commonwealth, which is set in motion by a general election. This is a stupendous power; and to see its true aspect we have only to suppose the Act of 1839 and its supplements to be still in force, and that this bill is filed to enjoin against it on the ground of the alleged illegality of some of its provisions. As a question of power, we would have the same right to enjoin against it, and thus to stop the wheels of government. See The State of Mississippi v. Andrew Johnson, 4 Wallace 475.

We come now to the important question whether the Act of 17th April last, called the Registry Law, is constitutional. It is admitted that the Constitution cannot execute itself, and that the power to regulate elections is a legislative one, which has always been exercised by the General Assembly since the foundation of the government. The Constitution appoints the time of the general election, prescribes the qualifications of voters, and enjoins the ballot; and for all the rest the law must provide. The precincts and places, the boards of election, the lists of the electors, whether called a list of taxables or a register of voters; and the evidence of persons and qualifications must all be prescribed by law. This undoubted legislative power is left by the Constitution to a discretion unfettered by rule or proviso, save the single injunction "that elections shall be free and equal." But to whom are the elections free? They are free only to the qualified electors of the Commonwealth. Clearly they are not free to the unqualified. There must be a means of distinguishing the qualified from the unqualified, and this can be done only by a tribunal to decide, and by evidence upon which a decision can be made. The Constitution does not provide these, and therefore the legislature must establish the tribunal, and the means of ascertaining who are and who are not the qualified electors; and must designate the evidence which shall identify and prove to this tribunal the persons and the qualifications of the electors. How shall elections be made equal? Clearly by laws which shall arrange all the qualified electors into suitable districts, and make their votes equally potent in the election; so that some shall not have more votes than others, and that all shall have an equal share in filling the offices of the Commonwealth. But how shall this freedom and equality be secured? The Constitution has given no rule and furnished no guide. It has not said that the regulations to effect this shall be uniform. It has simply enjoined the duty and...