State v. Butts

• Decision Date: 07 February 1884
• Citation: 2 P. 618,31 Kan. 537
• Parties: THE STATE OF KANSAS v. GEORGE D. BUTTS, et al
• Court: Kansas Supreme Court

2 P. 618

31 Kan. 537

THE STATE OF KANSAS v. GEORGE D. BUTTS, et al

Supreme Court of Kansas

February 7, 1884

Appeal from Shawnee District Court.

INFORMATION charging defendants with a criminal offense in receiving an illegal vote while acting as judges of a legal election held in the second ward of the city of Topeka on the 3d of April 1883. On motion of defendants, the district court of Shawnee county, at the April Term, 1883, quashed the information. The State appeals.

The facts, briefly, are these: Topeka is a city of the first class. The defendants were the judges at the election named. One W. C. Webb, who had resided in said second ward and had regularly voted therein for many years, appeared at the proper voting-place therein on the day of the election fixed for choosing city officers in April, 1883, and offered his ballot for certain persons for city officers, claiming the right of an elector to vote at such election. The defendants acting as judges at such election, were advised and well knew that said W. C. Webb had not been "registered" as a voter as required by chapter 80, Laws of 1879, "An act to provide for and to regulate the registration of voters in cities of the first class and second class." It was admitted, and the information so states, that said W. C. Webb possessed all the qualifications of an elector required by article five of the state constitution, and was entitled to vote at such election unless disqualified by reason of non-compliance with said registration act.

Judgment reversed and case remanded.

A. H Vance, county attorney, for The State:

Is the registration act of 1879 valid? If that act is valid, then the district court erred in quashing the information. An offense under the laws of this state is clearly charged. The officers constituting the election board are charged with the performance of delicate and responsible duties. The safety and perpetuity of government, in this country, depend upon the purity of popular elections. No person not legally entitled to vote should be allowed to vote; and the statute makes it a crime on the part of election boards to "knowingly and willfully commit any irregularity or fraud whatever with the intent to hinder, prevent or defeat a fair expression of the popular will." (Gen. Stat., ch. 31, § 219.)

The registration act of 1879 requires every person who wishes to vote at any legal election held in any city of the first class and any city of the second class, to apply in person to the city clerk of such city and be registered as an elector at least ten days next before such election. This act was passed pursuant to the command of § 4 of the suffrage article of the state constitution. The city clerk is authorized to fully inquire respecting the constitutional qualifications of the applicant, and if he finds him qualified he is duly registered as an elector. That fixes the applicant's right to vote. The proceeding is very simple and very reasonable. The object is to advise the boards of election in the several wards, (such boards being furnished with the registration book for their ward,) as to who are entitled to vote, and thus save disputes and contentions on election day, and insure ample time for all legal voters to vote. And § 9 of the act expressly provides that "No person shall be entitled to vote at any election in any such city who is not registered according to the provisions of this act."

The information expressly charges that the defendants knew that the person named therein had not been registered as a voter: that is, they knew he was not a qualified voter, and had no right to vote at such election. Yet they received his vote, put it in the ballot-box, and counted it--thus knowingly and willfully committing a fraud calculated to prevent or defeat a fair expression of the popular will--as, if one illegal vote may be received and counted, any number of illegal votes may in like manner be received, and the intention of the electors be wholly defeated by scheming or wicked election boards.

The information clearly charges a public offense, and the order of the district court should be reversed.

W. C. Webb, for defendants:

Is said registration act of 1879 valid? The defendants contend, first, that a "registration act," such as the constitution authorizes, must be a "general law," having uniform operation throughout the state; and second, whether having a general or only a local application, any registration act which deprives a person of the right to vote, although he has every qualification which the constitution makes necessary, is void.

1. The fifth article of the constitution relates to suffrage. Section one of said article prescribes what is necessary to constitute a "qualified elector." He must be a male person, of twenty-one years of age and upwards; he must have resided in Kansas six months next preceding any election at which he offers to vote, and in the township or ward where he offers his vote at least thirty days next preceding such election, and he must be a citizen of the United States, or a person of foreign birth who has declared his intention to become a citizen conformably to the laws of the United States on the subject of naturalization. These are all the qualifications prescribed in or by the constitution, and they apply to all voters alike throughout the state, without regard to particular place, or particular residence.

The disqualifications of those who might otherwise be entitled to vote are specified in section two of said article. These disqualifications, when classified, are as follows: 1st, Persons under guardianship, non compos mentis, or insane. 2d, Persons convicted of felony, unless restored to civil rights. 3d, Persons who have been dishonorably discharged from the service of the United States, unless reinstated. 4th. Persons guilty of defrauding the government of the United States, or any of the states thereof. 5th, Persons guilty of giving or receiving a bribe, or offering to give or receive a bribe. 6th, Persons who have ever voluntarily borne arms against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of said government, except all persons who have been honorably discharged from the military service of the United States since the first day of April, 1861, provided that they have served one year or more therein, unless such disability shall be removed by a law passed by a vote of two-thirds of all the members of both branches of the legislature.

Here are six classes of persons who are disqualified to vote in this state; and the disqualification does not depend upon locality. If a person is disqualified in one township or ward, he is disqualified everywhere within the state. Tried by the constitutional test, and said W. C. Webb was not disqualified; but on the contrary, he was a qualified voter.

The constitution makes no attempt to make "registration" a necessary qualification, nor a failure to be duly registered as an elector a disqualification; and the legislature cannot add or prescribe any additional requisites, nor any additional disabilities. The right to exercise the elective franchise is measured and determined by the constitution itself. Under the constitution as it is, the legislature cannot confer the right of suffrage upon women, nor upon minors, nor upon any person who has resided in the state for a less period than six months. Nor can it legally declare that no man shall vote unless he has been "registered" in a particular manner, nor for a certain length of time before the day of the election at which he offers to vote, any more than it can require a year's residence in the state, or restrict the right of suffrage to persons over the age of twenty-five years. The case of The State of Wisconsin, ex rel. Knowlton, v. Williams, 5 Wis. 308, is directly in point. Article 3 of the constitution of Wisconsin prescribes the qualifications and declares the disqualifications of voters. One of the qualifications required is "one year's residence in the state next preceding any election." The constitution of that state is silent respecting residence in county, township, or ward; so, by implication, actual residence in the township or ward at the time of offering his vote, if the person offering to vote possesses the other qualifications, is sufficient, although he may have moved into such township or ward only that day or the day next preceding. In 1856 the legislature of Wisconsin passed an act to provide for the removal of a county seat, which act provided that "no person shall be deemed qualified to vote upon the question of the removal of the county seat provided for in this act unless he shall have resided in the town where he offers to vote at least thirty days previous to the" day fixed for the election. In the case cited, The State v. Williams, 5 Wis. 308, the validity of said act was questioned upon the ground that it fixed a qualification and prescribed a disqualification not found in nor authorized by the constitution. The following is from the syllabus:

"By the term 'voters of the county,' in § 8 of article 13 of the constitution, in reference to the removal of county seats, is meant those who have a right to vote at elections held for state officers; and an act of the legislature which prescribes a qualification for an elector under its provisions additional to those prescribed by the constitution, as a previous residence of thirty days in the town where the elector offers his vote, is repugnant to the constitution, and void."

Now the Kansas registration act of 1879 is obnoxious to the constitution equally with the statute held void by the Wisconsin court. Our statute contains this provision:

"SEC 9. No person...