Rasmussen v. Baker

• Decision Date: 15 November 1897
• Citation: 7 Wyo. 117,50 P. 819
• Parties: RASMUSSEN v. BAKER
• Court: Wyoming Supreme Court

50 P. 819

7 Wyo. 117

RASMUSSEN v. BAKER

Supreme Court of Wyoming

November 15, 1897

RESERVED questions from the District Court for Carbon County. HON. JESSE KNIGHT, Judge.

This case was pending in the District Court for Carbon County. Plaintiff and defendant were opposing candidates for the office of County Treasurer of Carbon County, at the election of 1896, and defendant was declared elected by the canvassing board by a vote of 1,189 as against a vote of 1,162 for the plaintiff. Plaintiff contested such election, principally upon the ground that in two precincts, Hanna and Carbon certain natives of Finland, naturalized citizens of the United States who could not read the constitution of the State in the English language were permitted to vote, and voted for defendant in sufficient numbers to change the result, if their votes should be excluded. Said persons could read a translation of the constitution in the Finnish language. It was charged that said votes were illegal. The District Court reserved for the decision of the Supreme Court certain questions as important and difficult. So far as answered, the reserved questions are disclosed in the opinions which follow.

C. E Blydenburgh and N. E. Corthell, for plaintiff.

It is apparent that the Legislatures of 1890, 1891, and 1895 understood that only those illiterates who were qualified voters July 10, 1890, were to receive assistance in marking their ballots; and that those afterward becoming qualified should be competent to mark their own ballots, and must therefore, be able to read the ballots in the language in which they were printed. (L. 1890 - 1891, Chap. 100, Sec. 9; L. 1895, Chap. 48.) It is a solemn act to declare a law unconstitutional, and one to be performed with reluctance and hesitation. (Cooley's Const. Lim., 192, 193; Slaymaker v. Phillips, 5 Wyo. 453.) Legislative interpretation of the constitution is entitled to great weight. (Sutherland Stat. Const., 311; 5 Wyo. 453.) This is especially true of a Legislature meeting soon after the adoption of the constitution, and whose membership included many members of the constitutional convention. (Cooley Const. Lim., 81, 85; Suth. Stat. Const., 292, 307, 309; 5 Wyo. 453.)

In construing the constitution, the whole instrument is to be examined. The means employed are to be construed in the light of the end to be accomplished, and particular provisions are to be read in the light of the general intent. (Cooley, 71; Kent's Com. , 461; Suth. Stat. Const., 241.) Considering the various provisions in aid of education, restrictions upon suffrage, and for the secrecy and purity of the ballot, it is evident that it was intended the voter should be able to read his ballot in the only language (English) in which it is printed.

The constitution is intended to be a practical and working instrument. The electoral system must be enforced by ordinary means and through fallible, human instruments. If the test is ability to read in any language, how is it to be applied in ordinary practice? Is it to be supposed that the members of the convention intended that the constitution should be turned into multifarious languages, and authentic copies of all furnished to the registration and election officers in each precinct? And is it conceivable that such accomplished linguists could be found to fill these positions everywhere as to enable them to test the ability to read correctly in all languages? And, if not by these means, how otherwise can the reading requirement be practically enforced? Such is, we think, conceded to be the universal understanding of the qualification when applied to English-speaking voters; and no one, probably, would suggest that affidavits of ability to read should be accepted from voters whose qualifications could there be put to a practical and conclusive test. And, if this test is to be applied to English-speaking voters, why not to others? The great inconvenience, if not the impossibility, of thus carrying out the construction contended for by the defendant, is a well-recognized and useful test to apply in determining its reasonableness and fitness. (Suth. on Stat. Const., 324; 1 Blackstone Com., 60; Taylor v. Taylor, 10 Minn. 94.)

The interpretation which will sustain rather than destroy the constitution is to be adopted. (Suth. Stat. Const., 332.) Ability to read a particular instrument is required. This implies to read it in the English language. (Nolan v. State, 9 Tex. App., 423; Garcia v. State, 12 id., 339.) A translation is never the exact equivalent, even in the sense of the original. A difficulty would be encountered in setting up a censorship to determine what should be a sufficient translation. Reading a translation would not satisfy the constitutional requirement. The publication of a translation does not infringe a copyright. (Stowe v. Thomas, 23 F. C., 201.) Full effect must be given to the language employed. (Cooley, 72.) It was the particular class of voters involved in this case which was aimed at by the provision. (See Constitutional Debates, pp. 375, 377, 389, 391, 392, 432, 434, 435, 383, 441, 393, 390.) As verbal and contemporary expositions of the instrument, the debates were almost a part of it, and next to its own language, form the most certain and reliable key to its real meaning. (Miller Lect. on Const., 82, 100, 102; Cooley Const. Lim., 80, 81; Suth. Stat. Const., 300.)

Underlying the educational test is a principle which has received almost universal assent. It is the policy of every enlightened country to assimilate its population, amalgamate the races, unify and purify its language, and by these and other means to nationalize its people as fast and as completely as possible. There is a moral, as well as a practical, necessity for this policy which everybody recognizes. And a frequent and effectual expedient for the accomplishment of this general policy is to withhold the political power until the citizen has become thoroughly nationalized. (1 Burgess, Political Sc., and Const. L., 42.)

F. Chatterton, and Van Orsdel & Burdick, for defendant.

Sec. 9 of Art. 6 is one of the exceptions provided for in Sec. 2 of the same article. Provisos and exceptions are to be strictly construed. (Suth. Stat. Const., 224, 297, 298; U. S. v. Dickson, 15 Pet., 141; Epps v. Epps, 17 Ill.App. 196.) The provisions requiring an ability to read as a suffrage qualification are in the nature of exceptions to the common privilege. (Suth. Stat. Const., 466, 467.) Restrictions upon the elective franchise are strictly construed. (Cooley's Const. Lim., 486.) Statutes conferring or extending the franchise are to be liberally construed. (Suth. Stat. Const., Sec. 441.)

Upon a strict construction of Section 9, who is excluded? It mentions no language. Strictly, therefore, it does not require that the voter be able to read the constitution in any particular language. The word "read" will not be confined to the English language, but an article or document may be read in the German, French, or Finnish language. The constitutional debates are valuable as throwing light upon the intention of the members of the convention in adopting the section. (Cooley's Const. Lim., 80; People v. Blodgett, 13 Mich. 127.) The distinction in the debates was made between an ignorant or illiterate voter and an intelligent or educated voter, and it is apparent that the purpose was to deny the suffrage to the ignorant and illiterate. (Journals and Debates, Const. Conv., pp. 373, 389, 390, 453, 437, 438, 435.) Nowhere in the debates is the term used "to read in the English language," except when the author of the provision called attention to the fact that Massachusetts made such a requirement. Again, the section is taken from the Massachusetts constitution. It must be assumed that the convention was familiar with the provisions of that instrument. The fact that the words "in the English language" were omitted from our constitution, and are contained in that of Massachusetts, renders it apparent that the omission was intentional on the part of the convention. A person is not illiterate merely because he can not read English. Some of the best scholars of the time are not able to do so, but from a study of our institutions through translations in their own language, have become thoroughly acquainted with our system of government. It is not the duty of the citizen to furnish the necessary machinery for conducting an election. We can not see why an authorized copy of the constitution should not be furnished in the Finnish or any other language as well as in English. Official copies of the constitution can be provided by law in each of the different languages of the State.

The legislative acts referred to by counsel for plaintiff is not, and does not pretend to be, a construction of the constitutional provision under discussion.

(Counsel for each of the parties discussed other questions which were submitted, but the briefs upon those questions are not abstracted for the reason that the questions were not considered by the court.)

POTTER, JUSTICE. CONAWAY, C. J., concurs. CORN, JUSTICE, concurring.

OPINION

POTTER, JUSTICE.

The plaintiff brought this action in the district court to contest the election of defendant to the office of county treasurer of Carbon County. The plaintiff and defendant were opposing candidates for that office at the election, held on the 3d day of November, 1896. According to the abstract of votes made by the county board of canvassers the defendant was credited with 1,189 votes, and the plaintiff with 1,162 votes, and a certificate of election was issued to the defendant. The case was submitted to the district court upon an agreed statement of facts, whereupon that court ordered that certain important and...