People ex rel. Foley v. Kopplekom

Decision Date13 January 1868
Citation16 Mich. 342
CourtMichigan Supreme Court
PartiesPeople ex rel. Foley v. Augustus Kopplekom

Heard January 9, 1868 [Syllabus Material] [Syllabus Material]

Quo warranto.

The information in this cause was filed to test the right to the office of sheriff for Houghton county.

An issue of fact having been joined, the cause was referred to the Houghton circuit for trial.

The cause was tried without a jury.

The court below found that the defendant was not guilty of intruding into the said office. No exceptions were taken in the court below.

The report of the circuit judge being now before the court, the defendant moved for judgment.

Judgment entered for the respondent, with the costs of both courts.

A. W. Buel, for respondent:

1. The registration law is constitutional.

The general purpose of the law, as expressed by its title, and clearly indicated by its provisions, is "to preserve the purity of elections, and guard against the abuses of the elective franchise, by a registration of electors," and the provisions are clearly promotive of those purposes.

The constitution simply gives the right of the elective franchise and prescribes the qualifications of voters; but leaves the mode and manner of exercising the right open to regulation by the legislature, and for this purpose it is, and ever has been, a fruitful subject for changing legislation: 12 Pick 485.

Where the constitution has established a political right or privilege, but has not particularly designated the manner of its exercise, it is within the constitutional limits of the legislative power to provide such reasonable and uniform rules in regard to its exercise, as may be necessary to secure and protect the right or privilege thus established, and regulate the manner of its exercise: 12 Mass. 485; 44 N. H., 398.

It may be objected that a qualified voter, or all the qualified voters of a town, might lose their votes for the want of a register, from accident, ignorance, mistake, neglect or fraud.

To this we answer:

a. No law ever does or can perfectly provide against possible failure of execution, from one or more of the causes suggested by the objection.

b. The constitutionality of a law can never depend upon its execution or non-execution, in fact.

c. To lose the right of voting from such causes, is not to be disfranchised by the law; but is a result produced in opposition to, or in defiance of, the intent and provisions of the law.

2. The law being constitutional, its vital provisions now in question are mandatory, viz.:

a. There shall be a "a register for every town, city and village."

b. The register shall be "in the hands of the inspectors of election, to be used by them during the election."

c. The inspectors "shall not receive the vote of any person whose name is not written in the register."

Chief Justice Shaw speaks of similar provisions in the Massachusetts statute, as being "only a reasonable regulation of the mode of exercising the right of voting, which it may be competent to the legislature to make valid and binding, and to which both voter and presiding officers at elections are authorized and bound to conform."

It follows that if there be no register in existence, or if the election be conducted without a register in the hands of the inspectors, to be used by them at the polls during the election, then in either case the votes received are received illegally, and in the face of an express prohibition of the statute, and to be rejected in a judicial canvass.

Such being the case here, the entire vote of Franklin township should be rejected as illegal and invalid, and judgment be rendered for the respondent.

Wm. L. Stoughton, Attorney-General, and Moore & Griffin, for the people:

1. The constitution declares and defines the qualifications of voters, leaving to the legislature the right to pass laws to preserve the purity of elections, and guard against abuses of the elective franchise: Const., art. vii, §§ 1-6.

2. In the exercise of this power, the legislature can not add new qualifications. They can not restrict nor enlarge the conditions of suffrage, nor the qualifications of the electors: 5 Wis. 316; 9 Id. 283; 13 Mich. 127.

3. The registry acts of this state can be sustained as constitutionally valid, only on the ground that they are intended and adopted only to guard against abuses of the elective franchise.

They do not create or enlarge the right to vote, and they can not limit or destroy it, unless they provide the means for the voter to act in compliance with them, and so to secure the enjoyment and exercise of his constitutional rights.

The legislature may prescribe the mode of trying the right to vote, and regulate the evidence of such right; but this is as far as they can go.

4. This, in fact, is the scope of the registry law. The right to vote results from the constitution. The registry is but a means of preventing fraud, by requiring all voters, who are such under the constitution, to enroll their names before designated officers: 3 Allen 1.

5. It appears in this case that there was no registration of voters, and no opportunity to the electors to register their names.

There was no meeting of the board at all after 1864, and no opportunity to register on the day of the election.

The court below properly decided that there was no legal register in existence.

In connection with these are the facts, that an election was held; that the electors of Franklin did vote; that they were legal voters but for registration, and that they had no opportunity to register.

We claim that this was a good election under the constitution and that the rights...

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18 cases
  • Nelson v. Miller
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 25 Marzo 1999
    ...485. The principles then enunciated have been adopted by this court in numerous cases. Twitchell v. Blodgett, 13 Mich. 127; People v. Kopplekom, 16 Mich. 342; Attorney General v. Common Council, 58 Mich. 213, 24 N.W. 887. When power is conferred upon the legislature to provide instrumentali......
  • Fitzmaurice v. Willis
    • United States
    • North Dakota Supreme Court
    • 3 Junio 1910
    ... ... Lim. 757; Capen v. Foster, 12 Pick ... 485, 23 Am. Dec. 632; People ex rel. Foley v ... Kopplekom, 16 Mich. 342; State ex rel. Doerflinger ... ...
  • Eakle v. Board of Education of Independent School Dist. of Henry
    • United States
    • West Virginia Supreme Court
    • 28 Octubre 1924
    ... ... locality and its people, all its powers and functions, ... administered by the board of education ... office as a result thereof. People v. Kopplekom, 16 ... Mich. 342; Harris v. Scarborough, 110 N.C. 232, 14 ... S.E. 737; ... has passed is of no importance in this instance. State ex ... rel ... ...
  • Eakle v. Bd. Of Educ. Of Indep. Sch. Dist. Of Henry
    • United States
    • West Virginia Supreme Court
    • 28 Octubre 1924
    ...the election where the omission occurs is of no force and effect, and no one may claim the right to office as a result thereof. People v. Kopplekom, 16 Mich. 342; Harris v. Scarborough, 110 N. C. 232, 14 S. E. 737; Smith et al. v. Board of Trustees, 141 N. C. 143, 54 S. E. 524, 8 Ann. Cas. ......
  • Request a trial to view additional results

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