State ex rel. Stearns v. Corner
| Decision Date | 26 October 1887 |
| Citation | 34 N.W. 499,22 Neb. 265 |
| Parties | THE STATE OF NEBRASKA, EX REL. R. D. STEARNS, v. R. H. CORNER, W. M. GILLESPIE, M. D. TIFFANY, AND E. C. WIGGENHORN |
| Court | Nebraska Supreme Court |
ORIGINAL action in the nature of quo warranto to test the right of respondents to hold offices as judges of election in the fourth ward of the city of Lincoln under the provisions of Laws 1887, Ch. 39.
Petition granted.
C. O Whedon and Harwood, Ames & Kelly, for relator.
Billingsley & Woodward, for respondents.
The question presented in this cause is the constitutionality of chapter 39 of the session laws of 1887 (Compiled Statutes 1887, Ch. 26a). The principal contention is, that the act violates the provisions of section 22 of the bill of rights, article 1 of the constitution of this state. This section is as follows: "All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise." The act in question consists of 82 sections, and cannot be set out without extending this opinion to an unreasonable length, however desirable it might be to do so. We therefore must be content to refer to what may seem to be the more objectionable sections, as briefly as may be, yet giving them such consideration as the importance of the question requires.
The title of the act in question is, "An act to amend the election laws for metropolitan cities, and cities of the first class in the state of Nebraska."
So far as the subject of registration is concerned it must be sufficient to say that it is made the duty of the city council of cities of the class named in the act to appoint four judges of election and two poll clerks for each election district, in the month of September of each year, the officers so appointed to hold their offices for the term of one year, unless sooner removed by the mayor. The judges of election shall constitute the board of registration, each one of whom shall be provided with a register. They shall meet together and organize as such board and register such electors of the election district as may personally appear for that purpose on the following days, and then only, to-wit: On Tuesday four weeks, the Wednesday of the third week, and Friday and Saturday of the second week preceding the day of the November election in each year. No person shall be registered except those who personally present themselves for that purpose, and to all such an oath must be administered to truly answer such questions as may be put to them touching their place of residence, name, place of birth, qualifications as an elector, and right to register and vote.
The examination resulting in favor of the applicant, his name is entered upon each of the four registers, the proper memorandum being made in the several columns thereof. On each day of general registration, and before adjourning, the board is required to "enter in each of two books prepared for that purpose, one of which shall be known as the public copy of the registers, and the other of which shall be known as the election bureau copy of the registers, all such names and residences, and all such dates, information, and statements as during the day have been entered by the judge of election in the registers provided for" by the act. "The whole six books shall, on each of said days, after a completion of such copies of the registers, be carefully compared throughout, so that each of the registers and copies thereof shall in every respect agree with each other, and contain the name and residence of each person who shall have applied for registration, and the fact respecting him, as the same shall have been stated by him and entered in their registers." The time in which the board may be in session each day is from eight o'clock in the morning until nine o'clock in the evening. "For all powers, authority, and duties" prescribed, and "all actions of the board, or of said judges, save where such authority is specifically allowed to each of said judges, the concurrence or assent of a majority of all the judges of election in any election district, must in all cases be obtained." Section twenty-four of the act contains the following provision:
By the foregoing it will be seen that the right of any elector to vote must depend upon his registration within the four days set apart for that purpose, and upon the further fact that on election day his name must be found by at least three of the judges upon three of the registers. If not registered on one of those days--no matter what may have prevented--he can not vote. If he has registered and by mistake his name has been left off two of the registers, he is equally disfranchised. He cannot register, nor can the registry be corrected on election day.
We enter upon the examination of the question involved in this case with a full appreciation of its gravity and of the reluctance of courts to set aside the acts of the legislature as unconstitutional, and are mindful of the well established rule, that a law will be upheld if it can without doing violence to the fundamental law; yet it is a judicial duty, and one from which we cannot escape, to carefully consider the question, and if the act is in violation of the constitution to so declare it.
Section 1 of article VII. of the constitution--entitled Rights of Suffrage--provides that every male person of the age of twenty-one years, of the classes enumerated, "shall be an elector," and, of course, entitled to vote. W...
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