State v. Black

• Decision Date: 09 June 1892
• Citation: 54 N.J.L. 446,24 A. 489
• Parties: STATE (RANSOM, Prosecutor) v. BLACK.
• Court: New Jersey Supreme Court

24 A. 489

54 N.J.L. 446

STATE (RANSOM, Prosecutor)

v. BLACK.¹

Supreme Court of New Jersey.

June 9, 1892.

(Syllabus by the Court.)

Certiorari to court of common pleas, Hudson county; Lippincott, Paxton, and Hoffman, Judges.

Prosecution of Stephen B. Ransom against Daniel Black to review a judgment. Judgment sustained.

This writ of certiorari brings up a judgment of the court of common pleas of Hudson county, affirming a judgment of the second district court of Jersey City. The action was brought to recover the sum of $25, as a penalty, under section 63 of an act entitled "A further supplement to an act to regulate elections," approved April 18, 1876, which supplement was approved May 28, 1890, and is to be found in P. L. 1890, p. 361.

Argued February term, 1892, before Dixon. Garrison, and Reed, JJ.

Stephen B. Ransom, pro se.

Thomas J. Kennedy, for defendant.

REED, J. Section 63 of the new election act reads as follows: "No voter shall knowingly vote, or offer to vote, any ballot except an official ballot inclosed and sealed in an official envelope, as by this act required. Any person violating this provision shall incur a penalty of $25.00 for each and every offense, to be recovered by an action of tort, before any court of competent jurisdiction, by any person who bona tide shall first bring suit." The defendant below voted a ballot printed at his own expense, with no indorsement upon the back, as is required upon official ballots, and therefore admittedly contravened the section just mentioned. This is admitted by the prosecutor, but he attacks the judgment by challenging the validity of the statute prescribing the penalty. The indictment against the act sets out a number of particulars in which it is charged that the statute is in conflict with the state constitution. The parts of the statute which are thus attacked are the following: First, the clause in section 63 which prohibits electioneering, on election day, within 100 feet of any polling place; second, the last clause of section 63, which provides that any marked ballot or official envelope shall not be counted; third the provisions of section 28, which entails upon those voters who do not belong to a party who has nominated candidates, but who wish to vote a party ticket of their own, the trouble of procuring a petition signed by a certain percent of the entire vote cast at the preceding election, as a condition precedent to adopting a party name, and having tickets printed officially; fourth, the provisions of section 33, limiting the number of votes officially printed for petitioners to one half of the total number of votes cast at the preceding election; fifth, the provision of section 32, which provides that the official ballot shall have upon it the name or title of the party or principles of the party or petitioner making the nomination. The clauses of the constitution which are chiefly relied upon by the prosecutor, are the first clause of the first article of the bill of rights, which guaranties the right to enjoy and defend life and liberty, to acquire, possess, and defend property, and to pursue and obtain safety and happiness; and the second article of the constitution, which provides that every male citizen of the United States, of the age of 21 years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people.

It will be observed that all the points, except the first, made against the statute, have reference to a right to vote. In respect to these grounds of complaint, it may be remarked that the clause in the bill of rights seems to have no pertinency. The clause in the bill of rights is a general recognition of those absolute rights of the citizen which were a part of the common law. Whether any ad vantage accrues to the citizen from these declaratory clauses in the constitution, has been questioned. 1 Kent, Comm. 614. But whether or not some or all of these rights were inherent in the citizen without constitutional recognition is unimportant in the present discussion. It is unimportant because it will be observed that the material phases of the prosecutor's complaint is that he has been illegally limited in, or obstructed in, the exercise of his right to vote. If, therefore, the first mentioned clause of the constitution is to be invoked, it is essential that the right of suffrage shall be classed among those absolute rights therein recognized. Nothing, however, is established more unquestionably than that the right of suffrage is not an absolute right. No such right exists, unless specifically conferred by a constitution or a statute. It is a political right, and does not flow from the declaratory clauses of the bill of rights. 1 Story, Const. 580; Cooley, Const. Lim. 599. The question, then, is whether any of the features of the statute illegally obstructs the voter in exercising the right which is expressly conferred upon him. The right conferred is the right to vote for all elective offices. As to when, where, and how the voting is to take place is left to the legislature. Without the intervention of the legislature, the privilege conferred by the constitution would be fruitless. A wide field, therefore, is left open for the exercise of legislative discretion. The days upon which elections are to be held, the hours of the day or night during which, or between which, votes shall be received, must be determined by the legislature. So, too, the places where each election is to be held, and the size of the voting precinct, and whether the size shall be measured by territory or population, must also be settled by direct or delegated legislative authority The widest field for the exercise of legislative wisdom and discussion is in adjusting the method by which the sentiments of the voter shall be obtained and canvassed. The constitution does not even prescribe that the voting shall be done by ballot, and, in fact, long after the adoption of the present constitution township elections were conducted otherwise. In adopting a scheme for these purposes, it will require little thought to perceive that many considerations besides that of the voter's convenience must be regarded. The problem has been, and still is, how to gather the prevailing sentiment of the voting body so as to best conserve the purposes of popular government. The objects which have seemed the most important have been to exclude unqualified persons, and to shield the legal voter from the influences of coercion or corruption. The discovery of a scheme of voting which would the best secure these objects had long been in the thoughts of statesmen and reformers. The ballot itself became the method of registering the will of the voter in Great Britain only after a long period of agitation. The advantage of a system of secret voting was stirred by the Benth adminites as early as 1817. Enc. Brit. tit. "Ballot." In 1835 the judges of the court of kings' bench doubted whether by ballot was a legal mode of holding an election in a parish to fill a vacant curacy, under a custom that the parishioners should elect a successor to a deceased curate. Faulkner v. Elger, 4 Barn. & C. 449. The objection of the judges to the ballot was mainly that, if a person voted who was afterwards ascertained to have been disqualified, there was no way of telling how he had voted. After years of discussion, the ballot was adopted in local elections in Manchester and Stafford, in 1869, and was, in 1872, by the passage of Mr. Foster's Ballot Act, (55 & 56 Vict. c. 33.) introduced in all parliamentary and municipal elections, except parliamentary ejections for universities. But the mere use of the ballot has been shown by experience to be ineffectual to prevent coercion and corruption. The factor of supreme importance calculated to bring about this result is an enforced secrecy respecting the choice of the voter. So long as the ballot can be marked for identification, or the vote of the citizen can be disclosed in any way, the voter is liable to be called to an account for his conduct. The coercionist will treat his refusal to vote a marked ballot as an adverse vote. The corruptionist will have the means of assuring himself that the vote he has purchased will be delivered. The thoughts of those interested in pure elections were turned by these considerations to the device of some scheme for voting which would secure compulsory secrecy, and at the same time provide for an orderly, equal, and convenient exercise of the right of suffrage. The honor of first devising such a plan belongs to the government of the province of South Australia. In 1856 a constitution was adopted by that colony, granting popular representation and manhood suffrage. In 1857-58 the election acts were passed, which typify the system which has spread to two other continents under the name of the "Australian ballot system." The practical results of the introduction of this system is shown by the testimony of Sir Robert Richard Totten, who, as a member of the government of South Australia, had opposed the introduction of the secret ballot. His testimony, however, is that rioting and disorder had disappeared. Intimidation by landlords and trades unions alike had disappeared entirely, and the very notion of coercion or improper influences had died out. Wigmore's Australian Ballot. The good results of the Australian system induced the passage of the act of 1872 in England, already mentioned, which is based substantially on the South Australian method. Wherever similar election acts have been put in operation the sentiment of the community has been generally favorable. While they do not accomplish all that is desirable in the way of extirpating corrupt practices, their effect has undoubtedly been to secure quieter elections, to greatly reduce...