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This is the only construction that will explain the fact of Sec. 7 standing by itself, and being in the form of a direction to the General Assembly. If the suffrage article of the Constitution were a grant or a regulation of the suffrage, or both, then the Section would have read as follows:
“Every person having resided in this State one year,” etc. “who shall not have been convicted of an infamous crime, shall be entitled to vote at such election."
This would have indicated an intention to regulate the suffrage. If Section 1 is a regulation, and if the regulation is complete except as to criminals, what necessity of an act of the Legislature to exclude them from the suffrage? Why not incorporate the exclusion into the body of the regulation?
Thus it will be seen that however the various provisions of the Constitution may be worded, so far as they relate to the action of the Legislature, they may all be reduced to modes of restriction upon legislative power.
This doctrine, which is thus so plainly to be deduced from the principles upon which a State government is founded and from an analysis of the relation between a State Convention and the Legislature, has been recognized and announced by the varivus Courts throughout the country whenever the question has come up for adjudication.
The Courts have held with great unanimity that a State Constitution is not a grant of legislative power but a limitation upon its exercise.
One of the earliest decisions to that effect was in 1831, in Connecticut, Starr v. Pease, 8 Conn. Rep. 541; which was indorsed eight years afterward in Pratt v. Allen, 13 Conn. 119. Since then the decisions have been uniform.
The principal cases outside of our own State have been,
In New Hampshire, in 1845, Concord Railroad v. Greely, 17 N. H. 55;
In Michigan, in 1849, Scott v. Smart's Exrs., 1 Mich. (Manning), 306, and in 1865, Twitchell v. Blodgett, 13 Mich. 127;
In California, in 1854, The People v. Coleman, 4 Cal. Rep. 49, and in 1859, People v. Rodgers, 13 Cal. 159;
In Indiana, in 1856, Doe ex dem. Chandler v. Douglas, 8
Black. 10, and in 1870, Lafayette etc. R. R. Co. v. Geiger, 34 Ind. 185;
In Iowa, in 1858, McMillen v. Lee, 6 Iowa 391, and in 1863, Wright J. in Morrison v. Springer, 15 Iowa 342;
In Virginia, in 1858, Commonwealth v. Drewry, 15 Gratt. 5; In Wisconsin, in 1860, Bushnell v. Beloit, 10 Wisconsin
In New York, in 1861, People v. N. Y. Cent. R. R. Co., 34 Barb. 138; in 1865, Justice Brown in Sill v. The Village of Corning, 15 N. Y. 303, and in 1871, People v. Flagg, 46 N. Y. 401;
In Pennsylvania, in 1868, Page v. Allen, 58 Pa. St. 345, and in 1870, Lewis' Appeal, 67 Pa. St. 153;
In Ohio, in 1871, Walker v. Cincinnati, 21 Ohio St. 14;
In Texas, in 1878, Re Mabry, 5 Tex. Ap. 93, and Logan v. State, Id. 315.
See also Cooley's Const. Limitations, p. 173.
In Illinois, it has been repeatedly held by the Supreme Court that the Constitution is not a grant but a limitation of power. -(Field v. The People, 2 Scam. 79; People v. Wall, 88 Ill. 79; Harris v. Whiteside Co., 105 Ill. 145; Winch v. Tobin, 107 Ill. 212.)
If any doctrine may be considered settled in this country it is this. It is clearly stated by Justice Walker, in Harris v. Whiteside Co. in the following language:
“The question of legislative power, and its extent, depends on the limi. tations contained in the Constitution. When a State is created it is invested with complete sovereign power, unless restricted by constitutional. limitation. *
When we have to determine whether an act is within the scope of legitimate power, we do not look for an express delegation of the power in the fundamental law, but we look to see whether the general power has been limited.”—(105 Ill. Rep. 145.)
The relation, then, of the Convention to the Legislature, is that of a special to a general agent. The special agent has been appointed for the purpose of limiting the powers of the general agent. That, therefore, is the function of the Constitutional Convention, in its relation to the Legislative Assembly.
III. The relation between the Legislature and the people.
This relation is the most direct, the most simple, and the most easily comprehended of any under our form of government. The most ignorant voter understands that when he casts his ballot for a member of the Legislative Assembly, he is appointing an agent to act with other agents of the people in like manner appointed, in making laws for the State.
As the Convention is the special agent of the people, appointed for a special purpose, so the Legislature is their general political agent, appointed for the purpose of realizing selfgovernment. This is effected through the exercise by this agency, in behalf of the people, of general legislative authority: And it is because a special agent cannot invest a general agent with any power which is already within the purview of his general authority, that a Convention cannot, in a Constitution, grant power to the Legislative Assembly.
It is true that in some cases Courts have, from habit already referred to, spoken of a general grant of legislative power in the Constitution, but it is manifest that the true meaning to be attached to their language is that the general legislative power is recognized in the Constitution; since, frequently the same Courts and the same Judges, in other cases lay down the true doctrine, so well established, both by reason and authority.
The legislative power comes, not from the Constitution, but from the people direct. It is implied in the very act of electing members of the Legislative Assembly. It is not a special but a general authority, and is unlimited except by the nature of our government, and by the express prohibitions of the Federal and State Constitutions.
To illustrate the nature of this power, let us recur again to one of the most important objects upon which it can be exercised-the suffrage.
The regulation of the suffrage is an ordinary act of legislation. It involves direct relations between the Legislature and the people, and should be performed by a Legislative Assembly consisting of two houses. Hence it is not the function of a single body like a Constitutional Convention. Such a body
meets only at rare intervals, while a wise and prudent regulation of the suffrage must have reference to the exigencies of the times. Is there a great and sudden influx of people into a State from other portions of the country? Then it may be well to require a longer residence in the State. And so of residence in a county or a district. Such questions are peculiarly within the province of a Legislative Assembly.
But the Legislature must not under pretense of regulating the suffrage, interfere with the right.
"All regulations of the elective franchise," says Judge Cooley, “must be reasonable, uniform and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens: to vote, or unnecessarily to impede its exercise; if they do they must be declared void.”—(Cooley's Constitutional Limitations, p. 602.)
And in reply to objections which had been made to certain registry laws on the ground that they violated the foregoing rule, he says:
“The provisions for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised.”—(Ibid. p. 602.)
By “the constitutional right of citizens to vote," the learned judge undoubtedly refers to the right which is guarantied by the State Constitution. It is a right under our form of government, and is recognized and made the subject of constitutional guaranty.
Suffrage is the mode in which the citizen participates in the government. He cannot, ordinarily, participate in it in any other way. To say that the people have the right to govern themselves, and at the same time to deny that they have the right of suffrage, is a mere contradiction, in different terms. If it be said that the suffrage cannot be a right because it can. ot be exercised until regulations have been made and classes designated to vote, so may it be said with equal truth and propriety that self-government cannot be realized except through forms and modes of action to be prescribed by legislative enactment. And by the same line of reasoning it would follow, therefore, that there can be no such thing as self-government.
So, also, with the right to liberty, and property, and with
all other civil and political rights, none of which can be realized and enjoyed except under the regulations and restraints imposed by the necessities of law and order.
What, then, is a legitimate exercise of the power to regulate the suffrage? It must not arbitrarily interfere with the right of the citizen to participate in the government. Every provision in the way of a regulation must, in the language of Judge Cooley, he “reasonable, uniform and impartial.” It must have for its object the good of the State, and must find its justification in the nature of things.
The Legislature of a State has not an absolute, arbitrary control over the suffrage. Suppose it should be provided that a native of Indiana should not have a right to vote in Illinois. Would not such a discrimination against citizens of another State residing in Illinois, be a violation of the Federal Constitution, which provides that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States? But without going further into this at the present time, let us take another case.
Suppose it should be provided that only citizens between the ages of thirty and fifty could vote, thus excluding more than half of those ordinarily invested with the suffrage. Would not such a so called regulation be held invalid as an attempt to build up an aristocracy and subvert our government? These extreme cases show that there must be a limit to the power, and that suffrage is a right to be regulated, but not arbitrarily taken away. The limit is stated by the learned jurist already cited, and will be established by the Courts when necessary.
As to the extension of the suffrage by legislative action, that may be considered from two points of view. There may be classes of citizens, who are, according to the principles of our government, entitled to the suffrage, who have been wrongfully excluded from it. In such cases, the Legislature not only has the power, but it is its imperative duty to recognize the right in such classes at the earliest opportunity. This would be, properly speaking, no regulation of the suffrage, but the performance of an act of justice.
Again, there may be a class, who have not necessarily a