Sanderson, C. J., dissenting. The only questions involved in the determination of these cases relate to the constitutionality of the Act of the Legislature of the 25th of April, 1863, enabling the California Volunteers in the military service of the United States to vote at elections held in. that year for State and county officers. It is unnecessary to repeat here the provisions of the Act. It will be found at page five hundred and forty-nine of the Statutes of [225186]3. Its object was to afford to the qualified electors of the State, absent on the day of election, either from the State, or, if within the State, from their respective counties, in the military service of the United States, an opportunity to exercise their constitutional right of suffrage; a measure which was eminently just, as all must admit, and which ought to be upheld unless it be repugnant to the will of the people as expressed in the Constitution.
No controversy is made as to the object or intent and meaning of the Act; the only dispute being as to the true reading of certain provisions of the Constitution. The Act was passed upon the theory that the Constitution does not fix the place at which persons declared by its terms to be qualified electors shall perform the act of voting. If the theory be false, it is conceded that the Act is repugnant to the Constitution, and must be declared invalid. On the contrary, if the supposition be true, it is conceded that the Legislature has the same control over the place which it has over the time at which the act of voting is to be performed; and the Act is constitutional unless it may be justly declared obnoxious to section eleven of Article I of the Constitution, which provides that “ all laws of a general nature shall have a uniform operation,” or unless, upon general principles, it is, by reason of its extra-territorial operation, repugnant to the general spirit and policy of the fundamental law.
In approaching the discussions of questions affecting legislative power it is proper to advert to certain fundamental principles which lie at the foundation of all reasoning upon that subject, and by the light of which, to a greater or less extent, every problem of constitutional construction must be solved.
At the commencement, all legislative power was inherent in the people. “ In order to form a more perfect Union,” etc., the people delegated a portion of this power to the General Government, as expressed in the Federal Constitution, and thereby practically parted with it forever. By the Act adopting the State Constitution they further exercised and exhausted [226]the power remaining to them to the extent of the rules of civil conduct therein clearly expressed, or necessarily implied; and by their own direct act placed the rules thus established beyond the reach of change, except in one of the two modes expressly provided in the Constitution. The residue was held in reserve to be used, as the convenience or necessities of Government might require, not by themselves directly, but indirectly through a body to be chosen by themselves, by constitutional appointment, called the Legislature, which was thereby authorized to announce and express the will of the people upon all questions upon which it had not been already, in terms or by necessary implication, expressed in the Constitution. Thus the Legislature represents and stands in the place of the people, and when it speaks it speaks the will of the people as much so as the Constitution itself; and, in regard to obligations imposed, the rules of civil conduct ordained by the Legislature are of equal force and dignity with those prescribed in the Constitution except in case of conflict, when the former must yield to the latter, not because the lattet is of higher origin or of more solemn character, but merely because the same will which created both has so declared. Hence all legislative power which has not been expressly or by necessary implication granted to the General Government, or in like manner exhausted by the State Constitution, must be assumed to reside in the Legislature. And inasmuch q,s it is the prerogative of the people to prescribe rules upon all questions of civil conduct according as occasion may require, they cannot be precluded from its exercise in any case, unless by their own constitutional enactment they have already declared what the rule shall be. Hence the well settled rule of construction, that every Act deliberately passed by the Legislature must be regarded as binding and valid, unless the Act is clearly and manifestly repugnant to some provision of the Constitution. The people cannot be divested of their prerogative right to say what shall be the rule of conduct in a given case upon the mere conjecture or suspicion (arising from an incautious use of words which, by possibility, may mean less or more than was [227]intended) that they have already declared their will upon that subject. Nothing short of a constitutional prohibition, so explicit and clear as to leave no reasonable doubt upon the mind, can justify the Courts in declaring an Act of the Legislature null and void.
In his work on Constitutional Law, at page four hundred and eighty-two, Mr. Sedgwick upon this subject says: “ The leading rule in regard to the judicial construction of constitutional provisions is a wise and sound one, which declares that in cases of doubt every possible presumption and intendment will be made in favor of the constitutionality of the Act in question, and that the Courts will only interfere in cases of clear and unquestioned violation of the fundamental law. It has been repeatedly said that every State statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional; and such presumption is not to be overcome unless the contrary is clearly demonstrated.”
In Clark v. The People, 26 Wend. 606, Chancellor Walworth said : “ Courts ought not, except in cases admitting of no reasonable doubt, to take upon them to say that the Legislature has exceeded its power, and 'violated the Constitution, especially where the legislative construction has been given to the Constitution by those who framed its provisions, and contemporaneously with its adoption.”
In The Sun Mutual Insurance Company v. The City of New York, 5 Sand. 10, the Superior Court of New York said: “ The power of Courts of justice to declare the nullity of legislative Acts, which violate the provisions of the Constitution of the United States or of the State, is undoubted; but the power, for manifest reasons, is to be exercised in all cases with extreme caution, and never where a serious doubt exists as to the true interpretation of the provisions that are alleged to be repugnant.”
So in Illinois it has been said that the inquiry into the validity of an Act, on the ground that it is unconstitutional, is an inquiry whether “the will of the representative,- as [228]expressed in the law, is or is not in conflict with the will of the people as expressed in the Constitution; and unless it be clear that the Legislature has transcended its authority, the Courts will not interfere.” (Lane et al. v. Dorman et al., 3 Scam. 238.)
In Massachusetts it has been said that “Acts of a Legislature constitutionally organized are to be presumed constitutional, and it is only where they manifestly infringe some of the provisions of the Constitution, or violate the rights of the subject, that their operation and efíect can be impeded by the judicial power.” (Foster v. Essex Bank, 16 Mass. 245.)
In The Farmers' and Mechanics' Bank v. Smith, 3 Serg. and R. 73, the Supreme Court of Pennsylvania, through Mr. Chief Justice Tilghman, said : “We are now called upon to decide whether an Act of Assembly of this Commonwealth be void, because of its violating the Constitution of the United States. That this Court possesses the power, and .that it is bound in duty, to declare a law void, when it violates the Constitution of this State or of the United States, has not been denied by the counsel for the plaintiff. It is a point on which I am well satisfied; but, at the same time, it is certain that it is a power of high responsibility, and not to be exercised but in cases free from doubt. Such has been the opinion frequently expressed by Judges of the highest respectability in different States, and sanctioned by the Supreme Court of the United States. I will not pretend to say that the meaning of that pari of the Constitution on which this question arises is clear, but may safely say that it is doubtful. According to the established principles of construction, therefore, in doubtful cases, I am of the opinion that the law of the State is valid.”
In Fletcher v. Peck, 6 Cranch. 87, Mr. Chief Justice Marshall said: “ The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The Court, when impelled by duty to render a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station [229]imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.”
It is said by the Supreme Court of Iowa (Santo v. The State, 2 Clark, 165,) that “A statute is not to be declared unconstitutional unless the necessity be clear, decisive and unavoidable, and therefore of two constructions, that which will make the statute good is the one to be adopted.” So in The People v. Burbank, 12 Cal. 384, Mr. Justice Baldwin delivering the opinion of the Court, said : “ The delicate office of declaring an Act of the Legislature unconstitutional and void, should never be exercised unless there be a clear repugnance between the inferior and the organic law.”
In Hobart v. The Supervisors of Butte County, 17 Cal. 30, the same learned Judge said: “ The legislative department, representing the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the restrictions of the Constitution ; such restrictions must be shown before the action of the Legislature, as to the fact or mode, can be held invalid. Accordingly, the Legislature having this general power of enacting laws, may enact them in its own form, when not restrained, and give to them such effect, to be worked out in such way and by such means as it chooses to prescribe.”
The same Judge, in an elaborate opinion delivered in Smith v. The Judge of the Twelfth Judicial District, 17 Cal. 551, further said upon this subject as follows: “ There is no question at this day of the power of the Courts to pronounce unconstitutional Acts invalid, for this power results from the duty of the Courts to give effect to the laws—of which the Constitution is the highest—and which could not be administered at all if nullified at the will or by the acts of the Legislature. But it is equally well settled that this power is not to be exercised in doubtful cases, but that a just deference for the [230]legislative department enjoins upon the Courts the duty to respect its will, unless the Act declaring it be clearly inconsistent with the fundamental law, which all members of the several departments of the Government are sworn to obey.”
In view of the foregoing well established principles we are called upon to interpret section one of Article Second of the Constitution, which is assumed to be ambiguous. Upon the one hand it is-claimed that the section in question prescribes what shall be the qualification. of an elector, and there stops. On the other hand it is further claimed that it also prescribes • the place at which the act of voting shall be performed. If it be clear from the language used that it does fix the place, we are bound, regardless of consequences, to declare the Act in question unconstitutional. But, on the contrary, if it does not fix the place, or if there be reasonable doubt as, to whether it does or does not, it is equally our duty, so far as the section under consideration is concerned, to declare the Act free from constitutional objection.
The rules of law governing the interpretation of Constitutions, statutes and private instruments are the same, and their object is to aid in ascertaining, from the language used, the true intent of the maker. They are necessarily of a very general character, and afford at best but an imperfect guide'; and all who undertake the office of interpretation will find that they must after all rely mainly upon their own intuitions and perceptions. While a disregard of the strict rules of grammar is sometimes permitted, yet as a general rule the language used must receive an interpretation consistent with reason and grammatical usage, and never should the rules of grammar be departed from until they have failed to accord a satisfactory meaning to the doubtful words or passage. Their ordinary and popular signification should be given to the words used, unless from‘the nature of the subject it is apparent that some technical meaning was intended, yet as words individually or in combination do not always, even in common parlance, mean the same thing, it is necessary to consult the context for the purpose of ascertaining the precise meaning [231]intended, or the particular purpose for which the doubtful word or phrase has been employed. Hence, neither words, phrases, sentences, nor paragraphs should be isolated and interrogated apart; on the contrary, each should be interrogated in the presence of its companions, for each has a voice, and the response of one may operate to enlarge or restrict the response of the other. No reading can be true which does not closely observe their just relations to each other of words and phrases. Owing to the imperfections of language at one time, and at another to a want of care or skill on the part of the composer, it not unfrequently happens that adjunctive words or phrases are employed of a less or larger import in the abstract than is necessary to a clear expression of the idea intended to be conveyed. If such words or phrases are confined, 'upon the one hand, to their precise meaning in the abstract, or, on the other, allowed their full signification, the composer may be made to say less or more than he intended, and in the latter case to affirm two or more propositions, when in fact he designed to affirm but one. When such is the case, the words or phrases are themselves to be interpreted and their precise duty ascertained. Their abstract signification is to be expanded or trimmed to the true intent of the composer, jis gathered from the general design and scope of the doubtful sentence or passage. But this process cannot be carried to the extent of divesting any word or phrase of all meaning; on the contrary, the presumption is that no word or phrase is idle, and therefore to each some duty, if possible,' must be assigned. But it may be carried to the extent of divesting a word or phrase of a double or compound signification not essential to the main and leading idea affirmed by the predicate, and limiting its meaning to the purpose it was obviously intended to subserve.
“ While interpreting such words or phrases,” says Mr. Smith, in his Commentaries, at pages six hundred and ninety-one and six hundred and ninety-two, “great care must be observed that we do not, in all such cases, confound interpretation with criticism. The end of the latter is to find out what are the [232]words of the lawmaker, and whether the same are genuine or forged—whether any part or material parts have been foisted in or omitted or erased or altered. The end of the former is to find what was the intent and meaning, and to clear up that meaning when obscure—to ascertain the sense of ambiguous "words—to determine the design when imperfectly expressed.”
As I have already stated, the language to be construed should be first subjected to the test of grammatical analysis, and where the ambiguity is confined to a single sentence, as in the present case, it will generally be found that the rules of syntax afford all the aid required in order to determine the true intent and meaning of the author, or at least to determine whether he has affirmed the disputed proposition in language which admits of no reasonable doubt; for it is to be presumed, especially in respect to instruments of so solemn and deliberate a character as the Constitution of a State, in which simplicity and clearness of expression are studied, that the rules of syntax have been observed in the construction of its sentences. Such instruments are drafted by men of education, acquainted with the rules of the language in which it is written, and fully impressed by education and experience with the importance of stating separately and distinctly each organic rule of civil conduct.
A sentence is defined by grammarians to be an assemblage of words so arranged as to express an entire proposition. It is divided into principal parts and adjuncts. The principal parts are the subject, which is that concerning which something is asserted—the predicate, which is the word or words which assert something concerning the subject, and the object, which is that on which the act expressed by the predicate terminates. The subject and object may each consist of a word, or phrase, or sentence. The predicate is a verb with or without another verb, participle, adjective, noun, pronoun or preposition. A sentence is either transitive or intransitive; if the latter, it has no object.
Adjuncts are words used to modify or describe other words in the sentence. If they modify the subject or object, they [233]consist of adjective words, phrases or sentences. If they modify the predicate, they consist of adverbial words, phrases or sentences. They are primary and secondary; the former attend upon the principal parts of a sentence, and the latter upon other adjuncts.
A phrase is defined to be two or more words properly arranged, not constituting an entire proposition, but performing a distinct etymological office. They are of several kinds, but it is necessary to define only that class to which the phrase in the sentence to be construed, the meaning of which is the subject of the present controversy, belongs: i. e., a prepositional phrase, which is one that is introduced by a preposition and has a noun or pronoun (word, phrase or sentence) or a participle for its object of relation.
Having thus referred to and briefly stated some of the leading rules of law and of syntax which should guide us in the interpretation of language assumed to be ambiguous, I will now proceed to read by their light the first section of Article II of the Constitution, and determine how far its meaning is clear, and how far, if at all, its meaning is doubtful. It is in the following words :
“ Sectioit 1. Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro on the thirtieth day of May, 1848, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law; provided, that nothing herein contained shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the rights of suffrage Indians or the descendants of Indians, in such special cases as. such a proportion of the legislative body may deem just and proper.”
[234]This section contains much which is not pertinent to the question in hand, and therefore only serves to distract the attention. It may, therefore, for the purpose of reducing the language to be construed to a more connected and compact form, be omitted without prejudice to the construction contended for by either side. Thus pruned it will read as follows :
“Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law.”
Does this sentence, beyond all reasonable doubt, fix the place at which the act of voting is to be performed ?
The only words contained in the sentence which give any color to the idea that it does, are found in the prepositional phrase “ in which he claims his vote.” The chief task, therefore, which we are called upon to perform consists in ascertaining and assigning to this phrase its proper office; or in other words, in ascertaining the precise use to which it was applied by the author of the sentence. Let us then, in the first place, subject the sentence to a syntactical analysis. In doing this we áre at liberty to substitute for words or phrases others which are admitted to be, in the abstract, their precise equivalents. By doing this no change is effected in the sense, but the full meaning and design of the author may be made more distinct to the perceptions of the reader. Only one change in this respect is desired. Strike out the words “entitled to vote at all elections which are now or hereafter may be authorized by law,” and insert in their place the words, “ a qualified elector,” which all must admit is the precise equivalent in idea of the former expression. Thus modified, the sentence will read as follows :
“ Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county [235]or district in which he claims his vote thirty days, shall he a qualified elector.”
This sentence is intransitive and, therefore, of the principal parts of a sentence has but two, viz: the subject and predicate. The subject (which is that of which something is affirmed) is “ every white male citizen of the United States.” The predicate (which is that part of the sentence which affirms something of the subject) is “ shall be a qualified elector.” The remainder of the sentence consists of adjective adjuncts, for it is obvious that none of them are adverbial, for the reason that they do not qualify the verb “ shall be.” The expression “ in which he claims his vote,” is a prepositional phrase, having for its objects of relation the words “ county” and “ district,” and, therefore, performs the office of designating the particular county or district in which the fact of a thirty days residence must transpire in order to make the subject of the sentence a qualified elector.
There are two facts of residence, both of which must be found to accompany the person of the citizen in order to constitute him an elector. The idea of residence is complex, consisting of the ideas of person and place, both of which must be defined before a complete description of the qualifying effect of residence is obtained; or, in other words, the ideas of person and place must combine in order to define the fact of residence, which is one of the elements of electoral qualification. In doing this we may describe the person by name, if the fact of residence is to be limited to an individual, or, where it is to embrace a multitude, we may designate the person by some general description which is applicable to all, as is done in the present instance by the words “ every white male citizen of the United States.” The same is true of the place. In this instance there are two facts of residence to be described. The person is the same in both, and one description suffices for both, but the places are different and require different descriptions. The two facts of residence are, first, a six months residence, and "last, a thirty days residence. The place of the first is described by the words “ the State.” This is sufficient, [236]because there is but one State, and no further description is required. The place of the second is described in part by the words “ county” and “ district;” but this description is insufficient, because there are to be, as provided in the Constitution, several counties and districts. It must therefore be further described by adding words descriptive of the county or district. This could not be done by name, for obvious reasons. The counties and districts of the State had no names at the time, and if they hail they could not have been used for the purpose in question, because the citizen may change his county or district at pleasure, and the counties and districts may be increased or diminished in number, or changed in boundary at the will of the Legislature. Therefore it was necessary to adopt some general expression which, in view of a changing residence, would be equally applicable to all counties or districts, and meet the elector wherever he might go. Hence the phrase “ in which he claims his vote ” was adopted. This phrase, in connection with the words “county” and “district,” performs the same office in describing the second fact of residence which the word “ State ” performs in describing the first. Thus one purpose intended to be subserved by the use of this phrase is made manifest, and it is apparent that without it or some equivalent expression the manifest design of the author would have been imperfectly expressed.
From the necessity of the case, this phrase or some other equivalent in purpose and object had to be employed in order to indicate the county or district in which the qualification of a thirty days residence should be attained by the elector. Ho phrase could accomplish this except one which would in some manner associate the elector with the county or district. This could not well be done except by describing some act, .claim, event or fact with which, in the nature of things, he must be connected. The necessity for some such expression is exemplified in every Constitution in the Union where the framework of the sentence is at all similar to the one in hand. And this is true, independent of the fact whether such Constitution does or does not fix the place of voting by other words [237]than those contained in the phrase employed for the purpose of designating the county or district in which the second fact of residence must subsist. Thus, the phrase used for this purpose in the Constitution of Massachusetts is, “in which he may claim a right to vote,” which is equivalent in idea to the phrase used in our own. That used in the Constitution of Hew Hampshire is, “wherein he dwells.” The Constitution of Connecticut has the following: “In which he may offer himself to be admitted to the privilege of an elector.” In that of Hew York the expression is, “where he may offer to vote.” In Pennsylvania and Virginia, “where he offers to vote.” In Louisiana, Alabama, Mississippi, Kentucky and Missouri, “ in which he offers to vote.” In Ohio, “ in which he resides.” In Hew Jersey and Iowa the expression is the same as in our own Constitution. Although these expressions may, when abstractly considered, express different ideas, nevertheless they are manifestly used for the same purpose, and reach the same object by a different line of thought. They are used alike in Constitutions which do and do not fix the place of voting by the use of other words. In the former, necessarily they have been used only for the purpose which we accord to them. How, then, can it justly be said that words, which are confessedly used from necessity for a specific purpose, are, beyond all reasonable doubt, also used to indirectly accomplish ■ another purpose, originating from an entirely different conception, when in many instances in which they have been used for the former purpose they have not been understood by the parties using them, as accomplishing the latter ?
That the phrase in question has been used for the purpose indicated, is not denied by counsel for the respondents. The claim that it also fixes the place where the elector shall cast his vote, is, in my judgment, completely negatived by the predicate of the sentence, which sums up the whole meaning of all that has gone before, and expresses it in the words, “ shall he a qualified elector.” In that single expression'all the conditions previously enumerated are united, and the complete [238]design and intent of the author is disclosed and affirmed by himself in language too precise and clear to admit of doubt. The expression is equivalent to saying, “ When these various conditions, which I have described, are found united in the same person, such person shall be a qualified elector.” By it the author has himself expressed the whole design and scope of the sentence, viz: the definition of a qualified elector, and by it he has also qualified and limited the meaning and scope of his words to the expression of that design. This is made more obvious by transposing the sentence so as to make it read as follows: “ Every person shall be a qualified elector who is a white male citizen of the United States, who is of the age of twenty-one years, and has been a resident of the State six months next preceding the election, and of the county or district in which he claims his vote thirty days.” Manifestly, every word used subsequent to the predicate, “shall be a . qualified elector,” is merely descriptive of the individual represented as the subject of the sentence by the words “ every person.”
The ideas of qualification and place are not homogeneous, nor do they bear any just relation to each other, but are wholly distinct and independent. They exist separately. Each is perfect and complete without the other. A man is just as much a qualified elector when absent from the place of voting as when present. In the former case he has the right to vote, but not the opportunity. In the latter he has both. Although these two' ideas may be expressed in the same sentence, yet it is fair to presume that no writer who aims at even ordinary clearness of expression would inter-blend the two, but would give to each a separate position; and ordinarily such a writer would accord to ideas so distinct a separate sentence. The most ordinary observance of the rules of syntax would lead to the statement of distinct propositions in separate sentences, or at least in separate parts of the same sentence. These considerations are ignored entirely by the reading contended for by respondents. The author, while in the midst of stating a complete proposition, is made [239]to pause and assert another of entirely diiferent character, and bearing no relation whatever to the former, not in complete and apt terms, but in a mere phrase, which, by its own definition, does not contain an entire proposition, but which, by admission, is a relative expression, qualifying other words which are used for a foreign purpose.
It is safe to affirm that no writer of ordinary literary attainments who should take his pen with the deliberate intention of defining the qualifications of an elector, and also of defining the place at which such elector should cast his vote, would stop with the sentence in question. He would either add another independent sentence, or add to the sentence already written the words, “ And every elector shall vote in the election precinct of which he is a resident, and nowhere else,” or their equivalents. And it is permitted, and it is conducive to correct results, when we are searching language in order to discover the intent of the author, to put ourselves in Ms place, and assuming every theory which may be suggested, read his words for the purpose of determining how far they express our own conceptions of the subject. If they fail to do it fully and clearly, we may well doubt whether our conceptions have not gone beyond those of the author.
A further argument in support of our views may be drawn from some of the words used, when taken in connection with their definitions as given in other parts of the Constitution, and also, in connection with the universal practice of the American people in selecting places at which polls are to be opened on election days.
Counsel for respondents seem to regard the words “county” and “ district” as syonymous with precinct, or ward, or election district. Neither of these latter words, nor their equivalents, are used in any'clause of the Constitution. The words “ county” and “ district” are of frequent occurrence. The word “ county” is well understood, and is never used in the sense of an election district. By reference to other parts of the Constitution it will be readily perceived what is meant by the word “ district,” as used in the sentence in question. [240]The Constitution speaks of Congressional, Senatorial, Assembly and Judicial Districts only, and it is to them only the author refers.
An election district is a region of country within which a single poll is opened, and it is safe to affirm that the political history of the United States will rarely, if ever, and certainly not at the date of our Constitution, afford an instance where such a region embraced a whole county, or a Congressional, Senatorial, Assembly or Judicial District. It is confined to towns, wards, precincts, or other divisions greatly inferior in extent to “ counties” and “districts.” When therefore the idea of place is suggested in connection with the act of voting it does not remind us of counties or districts, but of .towns, wards, precincts, and the like, in which a single poll is opened. Ordinarily therefore no person who intended to fix the place at which an elector should cast his vote would use the words “county” or “ district,” for by so doing he would fail to accomplish the object sought by restricting the elector to a particular place. The objects sought by such restrictions are safeguards against fraud upon the elective franchise. So far as it imposes any checks or restraints upon fraud or the abuse of the right of suffrage, the bare restriction to a county or district would be practically as ineffectual as no restriction at all. He would, therefore, in view of the end to be accomplished, use words designating a single poll, thereby requiring the elector to vote in the immediate place of his residence and among those to whom his qualifications are likely to be known, thus guarding against any supposed evils which might result from his being allowed to vote elsewhere. Therefore in view of the reasons which are urged in support of the rule confining the elector to a given place, it cannot; in any just sense, be said that the words “county” and “district” do fix the place, for they are words of too great jurisdictional import to warrant the belief that the supposed benefits of the rule can thereby be practically secured.
In support of this view reference may be made to the Con[241]stitutions of other States, which confessedly fix the place of voting.
The language of the Constitution of New Hampshire is, “ to vote in the town or parish wherein he dwells.” The language of the Constitution of Connecticut is, “ at the meetings of the electors, in the respective towns.” That of New York is, “ shall be entitled to vote at such election in the , election district of which he shall at the time be a resident, and not elsewhere.” That of Maryland is, “ shall be entitled to vote in the ward or election district in which he resides.” That of Kentucky is-, “ and he shall vote in said precinct, and not elsewhere.” That of Indiana is, “ shall be entitled to vote in the township or precinct where he may reside.” That of Louisiana is, “ no person shall be entitled to vote at any election held in this State, except in the parish of his residence, and in cities and towns divided into election precincts, in the election precinct in which he resides.” Thus it appears generally that in Constitutions where the intent to fix the place of voting is manifested beyond all controversy, words of so broad a territorial signification as “county” and “district,” as defined- and understood in our Constitution, have not been used, but words descriptive of a much inferior territorial jurisdiction have been employed, for the obvious reason that the supposed evils resulting from the absence of such a constitutional restriction could not otherwise be sufficiently guarded against, nor the benefits thereof sufficiently secured. It is therefore reasonable to presume that the author of the sentence under consideration, had he intended to fix the place of voting, would have followed the examples cited above, and given full effect to the reason of the restriction.
We have not as yet examined minutely the phrase “ in which he claims his vote,” for the purpose of ascertaining upon what precise foundation the claim that it appoints the place of voting is grounded. Obviously it is not a complete sentence, and does not express an entire proposition when confined to its own terms—or if it does it asserts a proposition which is absurd upon its face; for unless some words, which [242]are not expressed, but understood, are added, the phrase does not represent the elector in the attitude of giving his vote, but in the attitude of seeking to obtain it. In order, therefore, to make sense of thi,s phrase, we must presume that there are certain words understood which are not expressed. This is of frequent occurrence in all languages, and if doubt exists as to the true meaning of the'author in such cases, it is the office of interpretation to supply the missing words which are necessary to complete the sense. But this rule does .not extend to striking out words which the author has used and indifferently inserting others of our own choice. Hence the striking out of the word “claims” and inserting the word “ offers” as suggested by counsel for respondents, is not supported by any rule of construction. Striking out and inserting is permitted for the purpose of sounding the meaning of the author; but in every such case the abstract import of the words inserted must be the equivalent of the abstract import of the words stricken out. Were we allowed to do as proposed by counsel, we should be writing Constitutions instead of reading them! There is no similarity of ideas between the abstract significations of the two words “ claim ” and “ offer.” On the contrary, they are directly opposed. To claim is “to call for,” “to seek to obtain,” “to demand something,” “as a right,” or “debt,” or “obedience,” or “respect.” Thus the subject of the verb “ to claim ” is by the meaning of the verb itself always placed in the attitude of a recipient of the object or thing claimed. On the contrary, “ to offer ” is to present something for acceptance or rejection by another, thus placing the subject of the verb in the attitude of parting with the object or thing offered. Thus it appears, abstractly considered, that the two words, instead of being of equivalent import, are directly the opposite. We cannot, therefore, under any rule of law, or grammar, governing questions of interpretation, substitute the one for the other. And here we might drop this branch of the case, for the whole argument of the respondents is grounded upon the theory that these words are of equivalent import when used in this phrase, and may there[243]
By the. process of substitution, therefore, we can only insert in the place of “ claims ” the words “ to call for,” “to seek to obtain,” “ to demand,” and the like. But it is obvious that these words afford no better clue to the meaning of the phrase than the one already employed. It is, therefore, clear that we have presented to us the ordinary case of words omitted or understood which must be supplied in order to give complete expression to the idea intended to be conveyed. The full meaning of the author not being, in my judgment, very obscure, a variety of words suggest themselves, either of which will serve equally well to. fill the vacancy which being incorporated complete the expression of the author’s idea in all of the following forms: “in which he claims his right to vote,” “ in which he claims his vote shall be cast,” or “shallbe counted,” or “shall be received.”
Neither of these expressions, by the mere force and effect of its own express terms, can be said to declare that an elector shall vote in the county or district where he has resided for the last thirty days. They do not assert an entire proposition for they are still but phrases. To the extent to which they do assert a proposition they do not assert a distinct and independent one, for they are still prepositional phrases, and by force of their own definition bear relation to words which have gone before, which words are terms confessedly in use to express an idea foreign to the alleged proposition. The meaning, therefore, for which respondents contend does not find positive and affirmative expression in the words used, but if it has any foundation it is grounded entirely upon an implication, which in my judgment is too thin and shadowy to afford a secure support for that certainty of conviction which, as we have ■ seen, is exacted by every rule of constitutional construction, in cases where the validity of an Act of the Legislature is [244]called in question and Judges are asked to declare it void. An inference so far fetched is more suggestive of the unreal foundations of speculation and conjecture than the substantial basis upon which must rest every implication that is made to dictate a rule of constitutional law. Before we can ground a rule of civil conduct upon a mere implication we must be satisfied that it is an implication which stands out clear to the view when called, and not one which refuses to appear unless summoned by microscopic power.
If the implication contended for exists, other eyes than mine have been unable to detect it, as I will now proceed to show.
The Constitution of Hew York, prior to the late amendment made to enable the volunteers to vote out of the State, upon this point read as follows:
“ Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of this State one year next preceding any election, and for the last four months a resident of the county where he may offer his vote, shall be entitled to vote at such election, in the election district of which he shall at the time be a resident, and not elsewhere.”
Here we have the phrase “where he may offer his vote,” which, as all must admit, is much more favorable to the respondents’ theory than the one which we are reading, and much more likely to beget the. implication contended for. But this implication does not seem to have been perceived by the learned men who framed the Constitution of Hew York; for they, with those words fresh upon their lips, immediately proceed in other and apt words to fix the place of voting, not suspecting that they had already established it beyond controversy by a necessary implication. It is clear that they did not use the phrase in question for the purpose of fixing the place of voting, nor did they suppose that while engaged in defining the qualifications of an elector they had also inadvertently, by a necessary implication, declared where he should vote.
The framers of the Constitution of Kentucky seem to have been afflicted with a like dullness of comprehension, for they [245]were also unable to see the necessary implication in question, and stupidly repeated themselves in the same sentence. The following are their words:
“ Every free white male citizen, of the age of twenty-one years, who has resided in the State two years, or in the county, town or city in which he offers to vote, one year next preceding the election, shall be a voter; but such voter shall have been, for sixty days next preceding the election, a resident of the precinct in which he offers to vote, and he shall vote in said precinct and not elsewhere.”
Here the expression which gives rise to the necessary implication contended for is used twice; nevertheless, the implication does not seem to have been discovered, for the place is immediately thereafter fixed in other and certainly more explicit words. Thus, if the implication contended for does necessarily arise from the use of this phrase, the authors of the Kentucky Constitution have, in effect, stupidly repeated the same idea three times in the same sentence—twice by necessary implication, and once in express and unmistakable terms.
The first Constitution of Louisiana was adopted in 1812. It prescribed the place of holding elections, and the qualifications of an elector in separate sections. Section five of Article II provides that—
“ Elections for Representatives for the several counties entitled to representation, shall be held at the places of holding their respective Courts, or in the several election precincts into which the Legislature may think proper from time to time to divide any or all of those counties.”
By other clauses of the Constitution, all other State officers who are to be elected by the people, are required to be elected at the same time and place as Representatives. Having. thus fixed the places of elections, the framers of the Louisiana Constitution proceeded, in the eighth section of the same Article to prescribe the qualifications of an elector in these words :
“ In all elections for Representatives, every free white male [246]citizen of the United States, who, at the time being, hath attained the age of twenty-one years, and resided in the county in which he offers to vote one year next preceding the election, and who, in the last six months prior to the said election, shall have paid a State tax, shall enjoy the right of an elector; provided, however, that every free white male citizen of the United States, who shall have purchased land from the United States, shall have the right of voting whenever he shall have the other qualifications of age and residence above prescribed.”
That the phrase “in which he offers to vote” was used in this section, in the understanding of the Convention, only for the purpose of defining the electoral qualifications of residence, is apparent from the fact that the place of voting had already been provided for in the fifth section of the same Article already quoted; and in addition the section bears internal evidence of the fact, which is found at the close of the proviso in the words, “ the other qualifications of age and residence above prescribed /” for by those words it is expressly declared that the preceding part of the sentence had been devoted to the subject- of qualification only.
A second Constitution was adopted in Louisiana in 1845, in which both of the foregoing provisions were retained in substance, and still a third bearing upon this question was introduced in the following words:
“ No person shall be entitled to vote at. any election held in this State, except in the parish of his residence, and in cities and towns divided into election precincts, in the election precinct in which he resides.”
A third Constitution was adopted in 1852, in which all three of the foregoing provisions were retained in substance, and, so far as the present question is concerned, in precisely the same phraseology.
Thus it is manifest that neither of the three Constitutional Conventions of the State of Louisiana, used the phrase “ in which he offers to vote,” for any other purpose than defining the qualification of an elector; and that neither of them supposed that the phrase which they were thus using, also, by a [247]necessary implication, established a rule for which they had elsewhere carefully provided.
The clause of the Constitution of Connecticut which defines the qualifications of an elector is expressed in the following words:
“ Every white male citizen of the United States who shall have gained a settlement in this State, attained the age of twenty-one years, and resided in the town in which he may offer himself to be admitted to the privilege of an elector at least six months preceding * * * shall be an elector.”
In 1862 the General Assembly of that State passed an Act to afford her volunteers in the service of the United States an opportunity to vote out of the State, of which, in its leading features, our Act of 1863 is a counterpart. They also, in pursuance of a custom which prevails in that State, passed a supplemental Act directing the Governor to take the opinion of the Supreme Court as to the constitutionality of the Act, and, in case it should be held unconstitutional, to make proclamation of the fact, upon which all persons should be released from, the duties imposed thereby. The Governor accordingly submitted the Act to the Judges of the Supreme Court for their opinion as to its constitutionality. The Judges were of the opinion that the Act was repugnant to the Constitution. And it is a significant fact, in this connection, that no allusion whatever is made to the foregoing clause of the Constitution in the very able opinion of the Judges delivered by Mr. Justice Butler. (30 Conn. 591.) Their opinion was grounded upon entirely different and independent clauses of the Constitution, clearly showing that in their judgment the clause in question exhausted itself in defining the qualifications of an elector, and afforded no ground for an implication that it also designated the place at which the elector should cast his vote.
Aside from what is said of Mexican citizens and Indians, the clause in our Constitution under consideration is a verbatim copy of a like clause in the Constitution of Iowa; and it has been recently decided by the Supreme Court of that State, after mature deliberation, that it does not designate the place [248]of voting. The process of reasoning differs from, that which I have adopted, but the conclusion is the same. How, in the presence of these many eminent and opposing witnesses, comprising the Constitutional Conventions of New York, Kentucky and Louisiana, and the several members of the highest judicial tribunals of two of our sister States, can it be justly claimed that the reading contended for by the respondents is correct beyond all reasonable doubt?
It is a familiar principle of constitutional interpretation that in doubtful cases the cotemporaneous construction of the legislative department of the Government should-be followed by the Courts. Our Constitution was adopted on the 13th day of November, 1849, and the first Legislature assembled on the 15th day of December thereafter. Many persons wTho were members of the Constitutional Convention were also members of the Legislature and fresh from the labors of the former body. At their first session the Legislature passed an Act regulating elections, which they divided into several chapters, each treating of a distinct 'branch of the general subject. The first treats of “general, county and special elections the second of the “ qualifications and disabilities of electors and the third of the “place of holding elections, Inspectors, Judges and Qlerks of ElectionSuch are the headings of each chapter, respectively, as adopted and expressed by the Legislature. (Wood’s Dig. 375 ) The first section of the chapter entitled “ qualifications and disabilities of electors,” is a verbatim copy, down to the proviso, of section one, Article II, of the Constitution. Thus, for the sole and only purpose, as they themselves expressly declare, of defining the qualifications of an elector, they borrowed and used the language of the Constitution, which, it is now asserted,, was used by a portion of them at least, only one month previously for another and distinct purpose as well. In addition to this, in the next chapter, entitled “ of the place of holding elections,” they provided that there .should be, not “ counties'" or “ districts” for holding elections, but precincts. And further on in the same chapter, at section twenty-nine, they prescribed the oath which, in case of challenge, should be exacted [249]of the elector before he should be allowed to vote. Thereby the elector is required to swear, among other things, that he has resided in the State six months, and in the district, county, or township (as the case may be) thirty days. In 1863 this oath was amended so as to allow an elector to vote for State officers in any part of the State, upon swearing to a six months residence, but leaving the law as it stood before so far as district, county and township officers are concerned. (Statutes of 1863, p. 745.) Thus, in the light of the Constitution, the Legislature have legislated upon this question of place from the commencement down to the present time, upon the theory that the Constitution does not designate the place, but leaves it, as well as the time, to their selection.
Sections two and three of Article II are cited by counsel for respondent in aid of the construction for which he contends. They are as follows
“ Sec. 2. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the day of election, during their attendance at such election, going to and returning therefrom.
“ Sec. 3. Ho elector shall be obliged to perform militia duty on the day of election, except in time of war or public danger.”
It is argued that these section's strengthen the foundation upon which the respondents’ alleged implication rests; and it is said that the framers of the Constitution by thus providing aids to the unobstructed enjoyment of the right of suffrage, manifested their intention of confining the exercise of that right to California soil. If this be so, it must be confessed that those eminent gentlemen unfortunately adopted a very obscure and roundabout way of affirming a very simple and straightforward proposition.
It is further said, in support of this not very plausible theory, that the exemption from arrest and militia duty as provided in these sections cannot be enjoyed by the elector, in [250]case of need, except upon California soil; that if the Legislature has the power to designate the place of voting it may direct all places of voting to be fixed upon foreign soil, and compel all who desire to exercise the right of suffrage to leave the State for that purpose; that hence (aside from the inconvenience of such a proceeding), it is in the power of the Legislature to practically deprive the elector of his constitutional right to freedom from arrest and militia duty on election day, thus malting the two sections in question impossible and absurd.
Counsel should remember that in order to establish an absurdity they have no right, and no rule of logic will permit them, to commence by assuming an absurdity themselves. Tet it has been done in this instance. In order to show that these sections might by possibility become inoperative and absurd, it is, if I am permitted to say so, absurdly assumed that the Legislature will take advantage of its power and send all the electors out of the State to vote. Such reasoning, I must beg leave to say, does not rise to the level of argument. It may with equal fairness be used to prove that the Legislature has no power whatever because it may by possibility abuse it. The utter fallacy of such reasoning may be illustrated as follows:
It is admitted that the Constitution does not fix the time or "appoint the officers of an election. So much, at least, is within the power of the Legislature. Suppose the Legislature should refuse to appoint either, what would be the consequence? This question the respondents have answered. The clause of the Constitution designed to secure to the citizen the right of suffrage would thereby become inoperative and absurd. Again : The Constitution provides that the Legislature shall protect by law, from forced sale, a .certain portion of the homestead and otjier property of all heads of families. Thus it was intended that every head of a family should have a homestead. Suppose, however, that the Legislature should obstinately refuse to carry this constitutional intent into effect by proper and apt legislation, what would be the result? [251]Evidently, according to the respondents’ theory, this clause of the Constitution would also become inoperative and absurd.
Thus it may be shown that every end and object of constitutional government may be defeated by non-action and abuse of power on the part of the Legislature. The argument leaves nothing to the good sense of mankind, without which Grovernments can neither be organized nor maintained. Against such consequences as the argument contemplates no safeguard can be found save in the good sense of the citizen, and for such results no remedy can be found save in the ballot box, or, if need be, in revolution. If the sections in question do not become inoperative and absurd until the Legislature fails to provide for elections within the State, and sends all the voters to a foreign soil to vote, it is safe to affirm that they will long remain living rules of civil conduct, securing to the citizen, so far as they go, the unobstructed enjoyment of his right of free suffrage. I am therefore unable to perceive how the respondents’ theory is aided by the sections in question. Their object is to further assure the right of suffrage by adding other rights which make more secure and certain the enjoyment of the former. • They were framed in aid of the right conferred by the previous section. To hold that they operate as restrictions upon it would be to convert aids into obstacles and friendly allies into foes. It does not follow that because the elector cannot for reasons beyond his control avail himself of certain constitutional immunities, he cannot enjoy when opportunity offers, a constitutional right expressly conferred. To hold that he cannot would be to countenance a glaring non segintur.
It is fair to presume that the framers of our Constitution did not perform their task without consulting other Constitutions. It is apparent from the debates of the Convention that they had before them several if not all of the Constitutions of the other States. Our examination has shown that some of those Constitutions fix the place of voting and others do not. That some of them use the same or equivalent language as that found in our Constitution for the sole purpose of defining [252]the qualifications of an elector, which is manifest from the fact that other and different language is used for the purpose of designating the place of voting. The policy, therefore, of confining, by constitutional provision, the exercise of the elective franchise to the county or district of the elector’s residence must have been suggested to the minds of the Convention, as well as the phraseology adapted to a clear and apt expression of such a rule. Tet we find that they have not adopted such, or equivalent phraseology. We know by comparison that they have in various parts made verbatim copies from other Constitutions: yet they have not copied in this particular of place from any of the Constitutions before them which, in other words than the phrase in question, fix the place of voting. It is therefore reasonable to infer that they wrote with their eyes open, and that they omitted to insert any clause designating the place, because they judged it wise policy to leave the place, as well as the time of voting, to the discretion of the Legislature. In view of that precision and clearness of expression which ought always to be observed in Constitutions, and which may be reasonably expected in all instruments of so solemn a character; and, in view of the many examples before them, in which language of even more weighty import than that finally adopted by them was used, for the sole purpose of defining the qualifications of an elector, and other language used for the purpose of fixing the place of voting, it is unreasonable to believe that the framers of our Constitution would have left so important a question to be solved by an implication so obscure that it does not rise much, if any, above the level of speculation or conjecture. On the contrary, the belief is reasonable, that had they intended to establish a rule upon this subject, which is second in importance only to the right of suffrage itself, they would have followed some of the examples before them, and grounded the rule upon express terms, and not left it tottering upon a doubtful implication.
It is worthy of note, in this connection, that in the debates of the Constitutional Convention upon section one of Article [253]Second, not one word is said in regard to the place of voting. • The only question in the minds of the Convention, as is clear from the debate, was that of qualification. The report of the debate covers fifteen pages, yet through the whole not one word was said indicating that in the understanding of the Convention the language used by them did more than define the qualifications of an elector. (Debates of Convention, p. 61.) This fact is significant and establishes beyond question the fact that the idea of place was not present to the minds of the Convention ; for it cannot be presumed that so important a feature would be passed by in silence through a long and elaborate debate upon the section in which it is alleged to have been incorporated, without a single word falling from the lips of a single member of the Convention indicating that he. was aware of its presence. To suppose that a feature of so great political consequence would be adopted without a word of comment, is to run counter to every intrinsic probability.
There are certain other sections of the Constitution which throw some light upon the question under consideration, and serve to fortify the conclusion that the place of voting is not prescribed in that instrument. The only sections of the Constitution which directly speak or refer to the places of voting are the following:
Section 5, Article TV. “ Senators shall be chosen for the term of two years at the same time and places as members of Assembly,” etc.
Section 2, Article V. “ The Governor shall be elected by the qualified electors at the time and places of voting for members of Assembly,” etc.
Section 16, Article V. “ A Lieutenant-Governor shall be elected at the same time and places and in the same manner as the' Governor,” etc.
Section 20, Article V. “ The Controller, Treasurer, Attorney-General and Surveyor-General shall be chosen by joint vote of the two houses of the Legislature, at their first session under this Constitution, and thereafter shall be elected at the [254]same time and places and in the same manner as the Governor and Lieutenant-Governor.”
For obvious reasons the foregoing quotations are made from the Constitution as it read prior to the amendments of 1863.
From the foregoing provisions it is apparent that all State officers, who were to be elected by the people, and members of the Senate are directed to be chosen at the time and places of voting for members of the Assembly. If then the time and places of voting are fixed' in the Constitution, we would, in view of these provisions, expect to find them in the section relating to the election of members of the Assembly. But upon turning to that section it will be found that the time, though fixed for the time being, is left to the discretion of the Legislature and the places not fixed at all. It reads as follows :
Section 3, Article IV. “ The members of the Assembly shall be chosen annually by the qualified electors of their respective districts, on the Tuesday next after the first Monday in November, unless otherwise ordered by the Legislature, and their terms of office shall be one year.”
The places of voting mentioned in the first three sections above quoted, are manifestly not “counties” or “districts,” but election precincts, wards or districts, in each of which there is but one poll. Aside from certain special questions affecting State indebtedness and amendments to the Constitution, the right of suffrage exhausts itself in the choice of public officers. The Constitution directs that all public officers who are created, and their election provided for by that instrument, so far as they are .to be chosen by the people, shall be elected at a time and at places at which the members of the Assembly are chosen; but neither the time, except temporarily, nor the places of voting for members of the Assembly, are designated. Thus the whole right of suffrage is to be exercised at times and places not appointed, but left to the selection of the Legislature.
In leaving this branch of the case it may be well to direct [255]attention to section nineteen of Article XI, which provides that—
“ Absence from this State on business of the State or of the United States shall not affect the question of residence of any person.”
On the score, therefore, of qualification merely, the absent soldier is as much entitled to vote as the elector who remains at home. All he needs in order to enjoy that right is the opportunity which the Act of 1863 affords.
Some stress has been placed upon certain words contained in the fourth section of the Act under consideration, it being claimed that they imply serious doubts on the part of the Legislature as to its validity. The words are as follows:
“ And the votes so given by such electors, at such time and place, shall be considered, taken and held to have been given by them in the respective counties of which they are residents.”
We cannot presume that the Legislature deliberately intended to pass an Act which they believed to be repugnant to organic law. On the contrary, every presumption of law points to an opposite conclusion. It is well known that the validity of the Act was mooted at the time of its passage, and it is possible that these words were used by the authors of the bill (knowing that the common law, in former times at least, dealt largely in fiction) under the impression that they might possess some magic power which, if otherwise questioned, would establish the validity of the Act. The words are idle and no more affect the argument as to the validity' of the Act than they do its operation. They may be struck out without prejudice to either. They serve no other purpose than that to which they have been applied in this case. They afford a target at which wit, if inclined, may aim its shafts.
It is next claimed that tlie Act is repugnant to section eleven of Article I. That section is in the following words :
“ Sec. 11. All laws of a general nature shall have a uniform operation.”
[256]The language of this section, like the laws of which it speaks, is of a general nature. So general as to leave in doubt, when by itself considered, the nature and extent of the rule it was designed to establish. The more one turns it over in his mind with a view to extract therefrom some intelligible rule for legislative guidance', the more strongly he will become impressed with the idea that this clause in our Constitution, by itself considered, does not rise much above the level of nonsense. The meaning of the predicate, however, is clear, for by a “ uniform operation,” I understand, as was said in French v. Teschemaker, 24 Cal. 544, an operation which is equal in its effect upon all persons or things upon which the law is designed to operate at all. The difficulty is in determining the precise definition of a general law. All laws operate upon persons or things. Are we then to understand that a general law is only one which operates upon all persons, or upon all things ? If so, it is obvious that our general laws are very few, if, indeed, there are any of that class. Obviously such cannot be the meaning of the words “ of a general nature,” as here used. The word “general” comes from gemís, and relates to a whole genus or kind; or in other words to a whole class or order. Hence, a law which affects a class of persons or things, less than all, may be a general law. If so, the California volunteers in the military service of the United States on the fifteenth day of July, 1863, may be regarded as a class, and the Act in question a general law. In that case it is not obnoxious to the constitutional objection on the ground under consideration, for it is not denied but that it operates uniformly upon all persons upon whom it was intended to operate at all.
This view is much the same as that taken by Mr. Justice Baldwin in Smith v. The Judge of the Twelfth Judicial District, 17 Cal. 554, in which case he had occasion to construe this provision of our Constitution. He there said:
“ The language must be carefully noted. It is not that laws shall be universal or general in their application to the same subject, nor is it even that all ‘laws of a general nature’ shall [257]be universal or general in their application to such subjects; but the expression is that these laws ‘ of a general nature’ shall be ‘ uniform in their operation;’ that is, that such laws shall bear equally in their burdens and benefits upon persons standing in the same category.”
Whatever of difficulty there may be in comprehending, when by iiself considered, the precise office which this clause of our Constitution was designed to perform, it is removed when we read it in connection with the context of the Constitution from which it was manifestly borrowed.
As a matter of history, it is well known that our Constitution is ,in many respects copied from that of Iowa. Upon motion of Mr. Gwin, the Constitution of Iowa was adopted by the Constitutional Convention as a basis for ours, for the reason, as stated by him, that it was 'one of the latest and shortest. (Debates of Convention, p. 24.) The First Article was reported by a committee of which Mr. Norton was Chairman, and as first reported consisted of sixteen sections, including the one in question, bearing the same number which it now has. Speaking of the report, Mr. Gwin said the first eight sections were from the Constitution of New York, and all the others were from the Constitution of Iowa. (Debates of Convention, p. 31.) So far as it goes, section eleven is a' verbatim copy of section six of Article I, of the Iowa Constitution, with the most important part left out. The latter section reads as follows:
“ Sec. 6. All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”
Here the meaning of the first clause of the sentence, which, by reason of the “glittering generality” of the language, when by itself considered, is obscure if not unintelligible, is explained and made clear by the latter clause, which serves as a definition to the first. The first clause is the shell and the latter is [258]the meat; and it is a little surprising that our Constitutional Convention, if unwilling to take both, should choose the former. Viewed through the medium of the latter clause, the meaning of the first is made so obvious that they may not have detected its intrinsic obscurity, and with a view to brevity may have concluded to take the rule without its definition. However that may be, the meaning of the clause as used in the Iowa Constitution is obvious, and we must presume that when our Constitutional Convention borrowed, the language they also borrowed the meaning, and designed that it should establish the same rule of legislative action which, by express definition, it is made to establish in the Constitution from which it is taken.
I am, therefore, of the opinion that the true intent and meaning of section eleven of Article I of our Constitution is to the effect that the Legislature shall not grant to any citizen or class of citizens privileges or immunities which, upon the same "terms, shall not equally belong to all citizens. Thus interpreted, it affords a reasonable and salutary restriction upon legislative power, and in my judgment any other reading would render it meaningless and absurd.
Thus read it is obvious that the rule which it establishes has not been contravened by the Act of 1863, enabling California volunteers to vote outside of the counties of their residence, either within or without the State. The only privilege conferred by the Act is the privilege of voting outside of the county or district, or State of the voter’s residence. The terms and conditions upon which this privilege is conferred and may be enjoyed are, that the voter on the 15th day of July, 1863, shall be in the military service of the United States, and thereafter on election day, and by the exigencies of that service absent on election day from the county of his residence. As to them the law is general, and makes no distinctions between individuals, but operates uniformly upon all. And it did not confer upon them any privileges or immunities which might not have equally belonged, “ upon the same terms,” to all citizens. Every citizen, envious of the privilege conferred, could [259]have secured its enjoyment to himself by following the example of the volunteers, and leaving his household gods behind, enlisting in the military service of his country.
It is lastly argued in effect that the Act is, by reason of its extra-territorial operation, repugnant to the true intent and spirit of the Constitution.- A like point was made in Pattison v. The Board of Supervisors of Yuba County, 13 Cal. 182, in reply to which Mr. Justice Baldwin, whom we have had frequent occasion to quote during the progress of this discussion, said:
“ The generality of such a proposition creates an instinctive suspicion of its .soundness. We do not deny that there may be a declared policy in a Constitution, as in a penal law or system of laws, and that it is not within the power of the Legislature to contravene this policy, although the act do not oppose the express language of any clause of the instrument. But this policy must be manifested by the terms of the Constitution fixing with precision the particular rule, and not be gathered by general inference or vague or uncertain speculation of what the framers of the Constitution designed but failed clearly to express. Mr. Justice Daniel, of the Supreme Court of the United States, took occasion, in a recent case, to disapprove of this course of reasoning, and, relaxing something of the austere dignity of that august tribunal, remarked that if the Judges were to adopt the notion that a law might be unconstitutional because of its supposed repugnancy to the spirit of the Constitution, they ought to employ & rapping medium to procure authentic revelations from that spirit.”
But little stress has been laid upon this point. I know of no restriction upon the power of the Legislature to pass laws, except the Federal and State Constitutions, unless they be found in the laws of natural justice; but if any are found there they practically belong to the department of the moralist rather than that of the jurist. There is nothing in the letter of the Federal or State Constitutions prohibiting the Legislature from passing laws by which acts are authorized to be done outside of the State, and their effects to be felt within it. [260]If there is anything in either which prohibits it, it finds no manifestation in the language of those instruments, and we have no other medium by which to consult their spirits. There is not a State in the Union in which the Legislature has not passed laws authorizing the testimony of witnesses residing out of the State to be taken by deposition and returned to the State and read in actions and proceedings pending in the Courts, with the same force and effect upon results as if delivered orally by the witness. Thus the testimony of an absent witness is lawfully allowed to affect the final determination of the rights of persons and property. No more is done in this case. The analogy between the two laws is perfect. The ballots of qualified electors are authorized to be received outside of the State, and when brought within it to- be counted and allowed their effect in the choice of public officers.
Upon this point, the Supreme Court of Connecticut use this language; “ In relation to the time, place and manner of holding elections, the Constitution of the several States differ. In some of them all three are prescribed with that particularity which forbids all action by the Legislature. In others, neither are prescribed but the qualification required of the voter is fixed, and the power to regulate the time, place and manner committed to the Legislature; and in such States the reception of votes out of the State may he constitutionally authorised.”
In view of what has been said, it might be fairly claimed that it is clear that the Constitution contents itself with prescribing the qualifications of the voter and the manner of voting, so far as the manner is measured and filled by the ballot system, and leaves the time and place to be selected by the Legislature ; but it is not necessary to go so far, as we have already seen, in order to establish the validity of the Act in question, for if, after mature deliberation, it can be .safely affirmed that its validity is involved in reasonable doubt, our duty is as plain in the latter as in the former case, and we are bound by every principle of constitutional construction to declare that the Legislature has not usurped a power which it [261]does not possess, and that the Act under consideration is valid and free from all constitutional objections.
Entertaining these views, I am compelled to dissent from the conclusion reached in these cases by a majority of my associates. In my judgment the Court below erred in excluding the soldiers’ votes, and for that reason the several judgments in these cases should be reversed. -