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right to vote, but whom it would still be competent for the Legislature, in the exercise of a sound discretion, to clothe with the elective franchise. Such an extension would be a legitimate regulation.
For instance, those who, being entitled and qualified in other respects, have resided in the county sixty days but not ninety days. This class might by legislative enactment be permitted to vote, and that would be a regulation of the suffrage. If the person seeking to exercise the elective franchise, is a citizen of the United States and has resided in the State a year and in the county ninety days, his right to vote is guarantied to him by the Constitution of the State. But that does not prevent the Legislature from extending the suffrage to those who have resided in the county but sixty days. In regard to legislative power, there is an essential difference between an extension of the suffrage and a restriction of it. In this case, the essence of the Constitutional provision is, that the Legislature shall not require a longer residence than ninety days in the County. Hence a law requiring four months would be a violation of this provision of the Constitution. But a law requiring only sixty days would stand on an entirely different footing
Indeed, upon principle, it would follow from the propositions which I have endeavored to maintain, that the Legislature would have full power to extend the suffrage to any class not specified in the Constitutional guaranty; since in case of a guaranty, the maxim, expressio unius est exclusio alterius, does not apply. In order that A should be guarantied the right to vote, it is not necessary that. B should be excluded; hence the Legislature may afterward recognize the right in B.
The Courts have, up to this time, it is true, been inclined to look upon the Constitutional provision as exclusive; but some of these decisions have been mere dicta. When it has only been necessary to say that the Legislature could not add to the Constitutional requirements, the Court has held that the Legislature could require neither more nor less than what was specified. The “less” was a dictum and a non sequitur. The adjudicated cases have not been sufficiently numerous nor have
they been sufficiently well considered, to settle the law upon a question of such vast importance.
It may be said that the construction here contended for would enable the Legislature to extend to foreigners the elective franchise, notwithstanding the guaranty to “citizens” in the Constitution. It is true that such a conclusion would follow from the premises. But if such power in the Legislative Assembly be thought a dangerous one, it is easy to guard against it, as some of the States have already done, by inserting in the Constitution a prohibitory clause, forbidding the Legislature to permit aliens to vote. The very fact that such prohibition is found in the Constitutions of some of the States, is sufficient to show thai the designation of “citizens” in the Constitution was not cons lered of itself sufficient; it being looked upon as a guaranty, am not necessarily exclusive of other classes.
Why should the Constitutional Convention, which is not properly a legislative body, undertake the exclusive regulation of the suffrage? Such an assumption of power, if attempted, is something to which no legislative body should submit. And the history of the country shows that the Legislatures have not felt willing to have their hands thus tied upon a legitimate subject of legislation. There have been repeated instances of the extension of the suffrage to classes not specified in the Constitution of the State.
In New York, various acts were passed extending the franchise to classes not within the Constitutional guaranty.. One of these only will be mentioned;
An act passed April 21, 1818, provided for a brigade to be called “The First Brigade of New York State Artfllery;” and Sec. 56 provided that every non-commissioned officer, musician and private of said brigade, “shall, provided he be a citizen of this State, and of lawful age, be entitled to vote at elections in the same manner as if he had actually paid taxes to this State;" and this although the Constitution expressly specified, as one of the qualifications of the guarantied class, that the elector be rated and "actually pay taxes to the State."
One of the first acts of this character was vetoed by the Gov
ernor on the express ground that the provisions of the Constitution were exclusive, but it was passed by the requisite majority over the veto. The Legislature of New York thus insisted upon its power to regulate the suffrage, notwithstanding the guaranty of the Constitution. Similar laws have been passed in various other States.
Such action in different States indicates a sensitiveness on the part of the State Legislatures, and an unwillingness to be deprived of their legitimate power to regulate the suffrage.
Other questions might be taken to illustrate the nature and extent of legislative power. In this article its application 'to the suffrage has been considered, because the question is now much under discussion, and because of its great importance.
The conclusions upon the general question are:
1. That a State Constitution, in its relation to the people, is a guaranty of their natural and political rights; while, in its relation to the Legislature, it is a restriction upon legislative power.
2. That the legislative power of a State is not derived from the State Constitution, but directly from the people.
3. That in its extent, this power is unlimited, except,
First, by the nature of our government, which forbids any violation of the natural rights of the people.
Secondly, by the restrictions placed upon the legislative power of the States by the people of the United States in the Federal Constitution.
Tbirdly, by the restrictions placed upon the State Legislature by the people of the State in their own Constitution.
That the limitation first herein mentioned, the one depending upon the nature of our government, is a legitimate and valid one, has been maintained in a previous article in the “Times," in which it was shown that such a limitation upon legislative power has the sanction of the greatest jurists of this country, and has been established by numerous decisions, not only in the State Courts, but also in the Supreme Court of the United States.
Charles B. Waite.
LAW REFORM IN PLEADING AND PRACTICE IN CIVIL CASES.—THE QUESTION OF COSTS.
To refer again to the matter of costs, as not unimportant either to the payee or payor, what are known as interlocutory costs seem to me a subject worthy of consideration. Apart from the costs of the whole cause, which should in my judgment, be, as I have said, paid by the unsuccessful litigant, and thus fall on the party who has needlessly created them, there are sundry items of costs which arise from mispleading, malpractice, neglect, oversight, or some cause altogether apart from the general merits of the case at issue. These, if none other ought assuredly to fall upon the party whose act, or want of care, or lack of diligence or knowledge, causes them to be incurred. And over these the judges, under the present constitution of the courts, apparently have a discretionary jurisdiction and no further legislation would seem to be necessary to invest them with it.
In some cases the judges, very properly I think, exercise such jurisdiction. The writer is conversant with a case in which à cause was dismissed for want of prosecution, no one being present to represent the plaintiff when the case was reached on the calendar. A motion was made to reinstate, which was granted conditionally on payment of five dollars costs,-not costs so called, meaning simply the disbursements paid to clerk of court, but a counsel fee of that amount, to be paid to the defendant's attorney. Now if this can be done in one cause, it could with great propriety be done in very many cases; and if it were made the rule of practice instead of merely
an exception, how much more prompt attorneys would become in having their cases ready for trial when called, and how many less continuances would be made than take place, to the loss of the time of the court, the attorneys and the suitors, and not infrequently to the detriment of the course of justice.
Interlocutory costs are very often caused by bad pleading, When a demurrer is filed and properly allowed, the filer of the faulty pleading gets leave to amend, almost if not always, as a matter of course; but is never as far as I can learn, ordered to pay costs; (i. e. attorneys fees.) Thus the attorney who demurs and whose demurrer is allowed, has the pleasure of setting his adversary right, but gets nothing for his own time or trouble, unless he charges his own client, who may or may not be in the right on the merits, but who has to pay in either
It strikes one that this is not justice. Attorneys should be made to file correct pleadings, or if a mistake will occasionally occur, let the party who makes it or on whose part it is made, pay all costs of having it corrected and set right. , It is or should be the one great object and aim of all judicial tribunals to have all matters that come before them for trial, come up on clear, regular and sufficient.pleadings, and it would greatly aid in bringing about this great desideratum, if the careless or inexpert pleader were made to pay the expense of successful demurrers and orders for leave to amend. Apart from which, the courts would be saved very much time and labor in not having insufficient pleadings to deal with. If such jurisdiction exists as that exercised in the case alluded to above, then a judge might as well, I think, make an order for costs in allowing a demurrer, and no legislation is needed. The whole subject could be covered by a few rules of court strictly carried out.
Such order for costs should include, as the term costs do in other places, not merely disbursements but attorney's fees. This could surely be done under the general jurisdiction exercised by the courts, and without regard to the construction of sec. 10, c. 33 of the Illinois Statutes relating to “Costs."
Before leaving the question of the establishing of a regular tariff of costs, a very fair argument in its favor would seein