Yates (County Clerk) v. Collins

• Decision Date: 28 September 1904
• Citation: 118 Ky. 682
• Parties: Yates (County Clerk) v. Collins.
• Court: Kentucky Court of Appeals

Page 682

118 Ky. 682

Yates (County Clerk) v. Collins.

Court of Appeals of Kentucky.

September 28, 1904.

APPEAL FROM KENTON CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED.

FURBER & JACKSON AND LEWIS McQUOWN, FOR APPELLANT.

BURTON, VANCE AND DAVID W. FAIRLEIGH, COUNSEL FOR APPELLEE.

OPINION OF THE COURT BY JUDGE SETTLE — REVERSING.

This action was instituted in the Kenton circuit court by the appellee, J. D. Collins, against the appellant, John C. B. Yates, clerk of the Kenton county court, to restrain him by injunction from carrying out the provisions of the act of the General Assembly of Kentucky approved February 11, 1904, entitled "An act to amend an act, entitled An act to regulate elections in this Commonwealth, approved June 30, 1892." Acts 1904, p. 31, c. 6. It is conceded that the appellee is a male citizen, resident, and taxpayer of Kenton county, Ky.; that he possesses the qualifications, under the Constitution and laws of the State, which entitle him to vote at the approaching November election, and no objection is urged against his right to institute this action. Nor do we question his right to do so, for, in order to carry out the provisions of the act supra, some expense for printing must be incurred by each county of the State through its county clerk, which is required to be paid out of the county levy. If, therefore, the act in question is unconstitutional, this expense should not be placed upon the counties, and a tax-payer like the appellee has such an interest in the matter as will entitle him to sue, as he has done, to test its constitutionality.

Section 145 of the Constitution provides: "Every male citizen of the United States of the age of twenty-one years, who has resided in this State one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the elections, shall be a voter in said precinct and not elsewhere; but the following persons are excepted and shall not have the right to vote: (1) Persons convicted in any court of competent jurisdiction of treason, or felony or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage; but persons hereby excluded may be restored to their civil right by executive pardon. (2) Persons who, at the time of the election, are in confinement under the judgment of a court for some penal offense. (3) Idiots and insane persons." Section 147 provides: "The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of 5,000 or more; and may provide by general law for the registration of other voters in the State. Where registration is required, only persons registered shall have the right to vote. The mode of registration shall be prescribed by the General Assembly." So much of section 147 as provides for registration in cities and towns having a population of 5,000 or more is clearly mandatory, and in pursuance thereof the General Assembly, soon after the adoption of the present Constitution by the people of the State, enacted such laws as were found necessary to carry this provision into effect. Kentucky Statutes, 1903, sections 1486 to 1506, inclusive. But no attempt was made by that body to exercise the discretion conferred by the same section of the Constitution to require registration of voters, other than those in cities and towns having a population of $5,000 or more, until the passage of the amendatory act now complained of by appellee. This act requires registration of all qualified voters in all the cities and towns of the State, without regard to class or population. It amends section 1488 of the original statute by adding to the end of that section the following: "The officers of registration shall issue a certificate of registration to each voter registering at the time he registers, showing that he has registered, and the date of his registry, and no person who is required to register under the provisions of this act shall have the right to vote at any election held in this Commonwealth until he shall have presented to the election officers his certificate of registration. Any person who has registered and whose certificate of registration has been lost or otherwise destroyed after the registration books, containing his registration, have been filed with the clerk of the county court, may, upon filing his affidavit before the county court clerk showing that fact, obtain a duplicate certificate of registration, and, upon filing such an affidavit before the county court clerk, it is hereby made the duty of the said clerk to issue said certificate, for which he may charge the applicant a fee of fifty cents, and said certificate shall entitle the person named therein to vote as if issued by the officers of registration and for the purpose of better enabling the officers of registration to carry out the provisions of this act, it is hereby made the duty of the county court clerk to furnish with the registration book, as in this act required, a sufficient number of printed certificates of registration to meet the requirements of this act and for which he shall be paid a reasonable compensation out of the county levy of the county." It is insisted for appellee that the amendatory act is unconstitutional, because of the provision requiring the voter to produce to the election officers, when he presents himself to vote, a certificate of registration from the officers of registration, or in the event of its loss, a duplicate certificate of registration from the county clerk; and because of the further provision that he shall not be permitted to vote unless he produces such certificate, or duplicate certificate, to the election officers. It being urged that these provisions constitute qualifications of the voter in addition to those contained in the Constitution; that they impose unreasonable regulations and burdens upon him, and tend to obstruct and destroy the right of suffrage.

We agree with counsel for appellee that the right of the Legislature to enact laws requiring registration existed before the adoption of the present Constitution, though the former Constitutions were silent on that subject; and that in passing upon a registration law enacted while the third Constitution was in force Judge Lewis, in Commonwealth v. McClelland, 83 Ky., 686, 7 R., 767, said: "It is only where such laws add to the qualifications prescribed by the Constitution, or impose unreasonable conditions to the exercise of the privilege of voting, that courts will interfere." An examination of the subjoined authorities, cited and relied upon by counsel for appellee, will show that, though expressed in different language, they do not enlarge the ground for interference upon the part of the courts with legislative action of this character beyond the rule announced by Judge Lewis in the case supra. McCreary on Elections, sec. 126; Cooley's Constitutional Limitations (7th Ed.), sec. 907; City of Owensboro v. Hickman, etc., 90 Ky., 629, 12 R., 576, 14 S. W., 688 10 L. R. A., 224. That the State Constitution may prescribe what qualifications shall be possessed by those upon whom it proposes to confer the elective franchise, none will deny. And it is equally true that that instrument may empower the Legislature to prescribe the mode of its exercise, in which case the authority of the latter body to enact such laws as may be necessary to the proper exercise of the power thus conferred can not be questioned. "The judicial power of the government may so far regulate and control the legislative department as to set aside and declare void laws enacted by it, where such laws are in conflict wih the Constitution. But this is upon the theory, not that the judicial department is superior to the legislative, but that the Constitution is superior to both, and that it is the province of the former to construe both the Constitution and the statutes, and determine whether there is a conflict. If there is, it is the Constitution that controls and limits the Legislature, and not the courts." Works on Court and Jurisdiction, p. 191. It was said by Judge Cooley on this subject: "Nor can a court declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guarantied or protected, by the Constitution. Cooley's Const. Lim. (7th Ed.), p. 232: "If the courts are not at liberty to declare statutes void because...