Case 86 — Action by J. D. Collins against J. C. B. Yates. County Clerk, for an Injunction to Test the Validity of the Registration Law.

September 28.

#### Yates (County Clerk) v. Collins.

APPEAL PROM KENTON CIRCUIT TOTJRT.

Judgment por Plaintiff and Defendant Appeals.

Reversed.

Elections — Qualifications of Voters — Production of Registration Certificates — Issuance by County Clerk — Preserving Affidavits.

1. Act Feb. 11, 1904 (Acts 1904, p. 31, c. 6), requiring a voter, as a condition of voting, to produce to election officers, when he presents himself to vote, a certificate of registration-from the registration officers, or, in case of its loss, a duplicate certificate from the county clerk, for which latter certificate-he must pay fifty cents, does not add to the qualifications prescribed by Const., sec. 145, providing that every male citizen over twenty-one years old, having a residence for a certain time, and not an idiot, or insane, or convicted of certain crimes, shall be a voter, but is authorized by section 147, providing that the mode of registration shall be prescribed by the General Assembly,.

2. Act Feb. 11, 1904 (Acts 1904, p. 31, c., 6), is not open to the objection of allowing the county clerk to issue a duplicate registration certificate in lieu of one lost by a voter, without other proof of such loss than his mere affidavit; the registration books being on file in the county clerk’s office from the time they are completed and returned by the registration officers, and it clearly being the clerk’s duty to refuse a certificate in lieu of one claimed to be lost if the name of applicant does toot appear therein.

3. Under Act Feb. 11, 1904, (Acts 1904, p. 31, c., 6), providing that a voter, on filing before the county clerk an affidavit showing-loss of his registration certificate, may obtain a duplicate certificate, the affidavit on being filed becomes a record in the clerk’s-office, and is to be preserved like other records.

4. Act Feb. 11, 1904 (Acts 1904, p. 31, c., 6), amending the statute for registration of voters, is not unconstitutional -because not providing penalties, though the penalties- provided by the amended. *683statute will not cover all offenses that may arise under the statute as.- amended.

S. Act Feb. 11, 1904, (Acts 1904, p. 31, c., 6), relative to registration of voters, *tí*not invalid because failing to provide for issuance by the county clerk of original certificates of registration to persons registered by him during the three days of supplemental registration provided, for by Ky. St. 1903, secs. 1498, 1499. The county clerk being the only officbr authorized to register voters during such time, the statute may he construed as authorizing him to issue certificates of registration to the voters then admitted to registration by him.

8. Const, sec. 147, requires the General Assembly to provide by law for the registration of voters in cities and towns having a population of $5,000 or more, and allows it to provide by general law for the registration of other voters in the State. Held, that such section did not require the Legislature to provide for the registration of all voters not residing in cities and towns having a population of 5,000 or more, in ease it required any of such voters to register, but that the Legislature was entitled to classify such voters by general laws, and to. exempt voters residing in the country from registration, while requiring those residing in cities and towns to be registered.

FURBER & JACKSON and LEWIS McQUOWN, fob appellant.

An act of the Legislature pursuant to an express power from the Constitution is not subject to review by the judicial department.

AUTHORITIES CITED ON THIS POINT.

Cooley on Const. Limitations, 7th Ed., 232, 237, 239, 228; U. S. v. Cruikshank, 92 U. S., 549, 23 Law Ed., 590; U. S. v. Peters-burg Judges of Election, 1 Hughes, 94; Fed. Cases, 16036; U. S. v. Crosby, 1 Hughes, 456; Fed. Cas., 14893; *Ex Parte*Seabold, 100 U. S., 394; 25 Law Ed., 725; .State *Ex Rel*Lamar v. Dillon, 32 Florida, 545; 22 L. R. A., 124, 135, 141; ,'State v. Black, 54 New Jersey Law, 456, 16 L. R. A., 769; Works on 'Courts and their Jurisdiction, p. 191; Edmunds v. Baubury, 28 Iowa, 272. Gillenwater v. Mississippi R. R. Co., 13 Ill., 1; Malby v. City of Marietta, 11 Ohio St. 636; Kenneen v. Wells, 144 Mass., 497, 59 Am. Rep., 105; Dorman v. .State, 34 Ala., 216; Winter v. Montgomery, 65 Ala., 403; Moore v. Sharp, 98 Tenn., 496; Cusiek’s Election 136 Pa. St, 468; Southerland v. Morris, 74 Md., 326.

*684BURTON, VANCE AND DAVID W. FAIRLEIGH, counsel foe appellee.

1. It is a fundamental proposition that the Legislature has no power to add to or to taire from the qualifications of voters, which are provided by the Constitution.

2. "While the Legislature is authorized by the Constitution to make registration laws, such laws must be confined to the mode of conducting the registration, and beyond this thef Legislature can not go. Under the guise of a registration law it can not impose additional qualifications, nor impose such unreasonable regulations as will impede the right of suffrage.

3. It is impossible to forecast the various methods which can and will be resorted to, under this act, to debauch the ballot box. There is no penalty whatever provided against traffic in registered certificates.

4. "We submit that the provisions of the amendatory act are not regulative of the mode of registration at all, but provide an additional qualification, and in all its provisions the act is unreasonable, unconstitutional and void.

Opinion of the court bn

JUDGE SETTLE

Reversing.

This action was instituted in the Kenton circuit court by the appellee, J. D. Collins, against the appellant, John C. B. Yates, clerk of the Kenton county court, to restrain him by injunction from carrying out the provisions of the act of the General Assembly of Kentucky approved February 11, 1904, entitled “An act to amend an act, entitled An act to regulate elections in this Commonwealth, approved June 30, 1892.” Acts 1904, p. 31, c. 6. It is conceded that the appellee is a male citizen, resident, and taxpayer of Kenton county, Ky.; that he possesses the qualifications, under the-Constitution and laws of the State, which entitle him to vote at the approaching November election, and no objection is urged against his right to institute this action. Nor do we question his right to do so, for, in order to carry out the provisions of the act supra, some expense for printing must be incurred by each county of the State through its county *685clerk, wliicli is required to be paid out of tbe county levy. If, therefore, tbe act in question is unconstitutional, this expense should not be placed upon tbe counties, and a taxpayer like tbe appellee has such an interest in tbe matter as will entitle him to sue, as be has done, to test its constitutionality.

Section 145 of the Constitution provides: “Every male citizen of the United States of tbe age of twenty-one years, who has resided in tbis State one year, and in the-county six months, and tbe precinct in which be offers to¡ vote sixty days next preceding tbe elections, shall be a voter in said precinct and not elsewhere; but tbe following persons, are excepted and shall not have the right to vote: (1)-Persons convicted in any court of competent jurisdiction of treason, or felony or bribery in an election, or of such high misdemeanor as tbe General Assembly may declare shall operate as an exclusion from tbe right of suffrage; but persons hereby excluded may be restored to their civil right by executive pardon. (2) Persons who, at the time of the election, are in conflnemeni under the judgment of a court for some penal offense. (8) Idiots and insane persons.” Section 147 provides: “The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of 5,000 or more; and may provide by general law for the registration of other voters in the State. Where registration is required, only persons registered shall have the right to vote. The mode of registration shall be prescribed by the General Assembly.” So much of section 147 as provides for registration in cities and towns having a population of 5,000 or more is clearly mandatory, and in pursuance thereof the General Assembly, soon after the adoption of the present Constitution by the people of the State, enacted such laws as were *686found necessary to carry this provision into effect. Kentucky Statutes, 1908, sections 1486 to 1506, inclusive. But no attempt was made by that body to exercise the discretion conferred by the same section of the Constitution to require registration of voters', other than those in cities and towns having a population of #5,000 or more, until the passage of the amendatory act now complained of by appellee. This act requires registration of all qualified voters- in all the cities and towns of the State, without regard to class or population. It amends section 1488 of the original statute by adding to the end of that section the following: “The officers of registration shall issue a certificate of registration to each voter registering at the time he registers, showing that he has registered, and the date of his registry, and no person who is required to register under the provisions of this act shall have the right to vote at any election held in this Commonwealth until he shall have presented to the election officers his certificate of registration. Any person who has registered and whose certificate of registration has been lost or otherwise destroyed after the registration books, containing his registration, have been filed with the clerk of the county court, may, upon filing his affidavit before the county court clerk showing that fact, obtain a duplicate certificate of registration, and, upon filing such an affidavit before the county court clerk, it is hereby made the duty of the said ■clerk to issue said certificate, for which he may charge the applicant a fee of fifty cents, and said certificate shall entitle the person named therein to vote as if issued by the officers of registration and for the purpose of better enabling the officers of registration to carry out the provisions of this act, it is hereby made the duty of the county court clerk to furnish with the registration book, as in this act required, *&*sufficient number of printed certificates of registration to *687meet the requirements of this act and for which he shall be paid a reasonable compensation out of the county levy of the county.” It is insisted for appellee that the amendatory act is unconstitutional, because of the provision requiring the voter to produce to the election officers, when he presents himself to vote, a certificate of registration from the officers of registration, or in the event of its loss, a duplicate certificate of registration from the county clerk; and because of the further provision that he shall not be permitted to vote unless he produces such certificate, or duplicate certificate, to the election officers. It being urged that these provisions constitute qualifications of the voter in addition to those contained in the Constitution; that they impose unreasonable regulations and burdens upon him, and tend to obstruct and destroy the right of suffrage.

We agree with counsel for appellee that the right of the Legislature to enact laws requiring registration existed before the adoption of the present Constitution, though the former Constitutions were silent cn that subject;- and that in passing upon a registration law enacted while the third Constitution was in force Judge Lewis, in Commonwealth v. McClelland, 83 Ky., 686, 7 R., 767, said: “It is only where such laws add to the qualifications prescribed by the Constitution, or impose unreasonable conditions to the exercise of the privilege of voting, that courts will interfere.” An examination of the subjoined authorities, cited and relied upon by counsel for appellee, will show that, though expressed in different language, they do not enlarge the ground for. interference upon the part of the courts with legislative action of this-character beyond the rule announced by Judge Lewis in the cqse supra. McCreary on Elections, sec. 126; Cooley’s Constitutional Limitations (7th Ed.), sec. 907; City of Owensboro v. Hickman, etc., 90 Ky., 629, 12 R., 576, 14 S. W., 688, *68810 L. R. A., 224. That the State Constitution may prescribtwhat qualifications shall be possessed by those upon whom it proposes to confer the elective franchise, none will deny. And it is equally true that that instrument may empower the Legislature to prescribe the mode of its exercise, in which ease the authority of the latter body to enact such laws as inay be necessary to the proper exercise of the power thus •conferred can not he questioned. “The judicial power of the government may so far regulate and control the legislative department as to set aside and declare void laws •enacted by it, where such laws are in conflict wih the Constitution. But this is upon the theory, not that the judicial .department is superior to the legislative, but that the Constitution is superior to both, and that it is the province of the former to construe both the Constitution and the statutes, and determine whether there is a conflict. If there is, it Is the Constitution that controls and limits the Legislature, and not the courts.” Works on Court andi Jurisdiction, p. 191. It was said by Judge Cooley on this subject: “Nor can a court declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guarantied or protected, by the Constitution. Cooley’s Const. Lim. (7th Ed.), p. 232: “If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do .so because they appear to the mind of the judges to violate •.fundamental principles of republican government, unless it 'shall be found that these principles, are placed beyond legislative encroachments by the Constitution.” Cooley’s Const. iLim. (7th Ed.), p. 237: “Nor are the courts at liberty to declare an act void because, in their opinion, it is opposed to *689a spirit supposed to pervade the Constitution, but not expressed in words.” Cooley’s Const. Lim. (7th. Ed.), p. 239; Edmonds v. Banbury, 28 Iowa, 272, 4 Am. Rep., 177; State etc., v. Dillon, 32 Fla., 545, 14 South., 383, 22 L. R. A. 124. In Kinneen v. Wells, 144 Mass., 497, 11 N. E., 916, 59 Am. Rep., 105, it is said: “The qualifications of voters are fixed by State legislation. The requirements as to ownership, citizenship, sex, and residence, in connection with the right of voting, vary with the Constitutions or laws of the several States. However unwise, or unjust, or even tyrannical its regulations may be, or seem to be in this regard, the right of each State to define the qualifications of its voters is complete and pérfect, except so far as it is controlled by the fifteenth article, amendments of the Constitution of the United States.”

As before remarked, section 147 of the Constitution declares that “the mode of registration shall be prescribed by the General Aseembly.” 'The power thus delegated is comprehensive. By it the General Assembly is not only authorized to fix the plan or method of registration, but also to provide every detail thereof. Of the many registration laws of the States it will, we doubt not, be found that hardly any of them are alike. In some of the States the voter, in registering, is required to make oath as to his name, age, residence, etc. In others it is necessary to enter in the registration book a description of his person in addition to his name, age, and place of residence. We are told by counsel that in one State the voter is" required to sign the registration book, and also the election book, so that his identity may be established by a comparison of signatures. In several of the States the law, as in this State, requires the .registration officers t© issue - a certificate to the *690voter when be registers, and this certificate be must preserve,, and present to tbe election officers on election day as a prerequisite to voting. “Registration,” as applied to elections, is defined by tbe Century Dictionary as follows: “In tbe United States it is a system for tbe preventing of frauds in tbe exercise of suffrage by requiring voters to cause tbeir name to be registered in books provided for the purpose in each election district, with appropriate particulars of residence, age, etc., to enable investigation to be made, and tbe right of tbe voter to cast tbe ballot to be challenged, if there be occasion. In Great Britain and Ireland tbe word ‘registration,’ as used with reference to elections, means tbe making-up of a list of voters, which, after judicial revision is tbe accredited record! of tbe electors entitled to vote.” Tbe word “registration,” as tbe dictionary will show, has other meanings than that given above. But, accepting the definition here given, it does not follow that tbe issuing of a certificate by tbe registration officers to tbe voter when be registers is not a part of the plan of registration, for the certificate is intended to furnish tbe voter as well as the election officers with evidence, in addition to that furnished by tbe registration book, that be is a registered voter, and therefore entitled to vote. The principal thing intended is that tbe certificate shall furnish better means of identifying tbe voter. His possession of tbe certificate, though conclusive as to the fact that tbe person named therein has been registered, will not be conclusive of bis right to vote, for, if unknown to tbe election officers, they may require other proof of bis identity. In other words, as argued by counsel, tbe registration certificate does not mean “vote bearer” unless “bearer” be known to tbe election officers to be tbe person named therein. It is equally true that tbe exercise of due care upon tbe part of tbe election officers in requiring *691identification of holders of registration certificates who are unknown to them would practically exclude from voting those who, through their loss by the owners, or other improper means, might get possession of them. The act is not, in our opinion, open to the criticism that it will tend to disfranchise voters otherwise qualified. The voter is put to no inconvenience in obtaining the registration certificate. It is given him when he registers, and the provision which allows him in the event of its loss, to procure another of the county clerk by filing with that officer his affidavit proving such loss, relieves the voter of the disfranchisement that would otherwise necessarily result from its loss. There will doubtless be bribing of voters under the registration statute as amended by the act in question, as there was under Ifhe former law; for while corrupt voters may, under the present law, he induced to sell their certificates of registration, and thereby deprive themselves of the right to vote, under the former law the same result was reached by hiring them not to register, or to remain away from the election after registering, by which they were also prevented from voting. It is to be deplored that such evils should be associated with the ' elective franchise, but we must look to the General Assembly for relief against them in the form of more stringent laws for their suppression.

• It is also argued that the act imposes a burden upon the voter not contemplated by the Constitution, in that it compels him, in case of the loss of his certificate of registration, to incur expense to the amount of fifty cents in order to procure another oi the county clerk. It is to be taken for ■granted that the loss of registration certificates will rarely ■occur, except through the fault or neglect of the owners, for which reason it were better to put upon the party in fault the duty of paying the clerk the nominal fee for the dupli*692cate certificate than to compel that unoffending officer to perform the services required of him without compensation. Under the law the officers of registration or those of the election may, if unacquainted with a person desiring to register or vote, require proof of his identity; and would doubtless be authorized, at the instance of such person, to issue subpoenas for witnesses to be. summoned to prove his identity. If so, or such person should find it necessary to hire a vehicle to convey to the place of registration or the voting booth witnesses to prove his identity, would it be contended that he would not be legally liable for the expense of summoning or conveying his witnesses to the place of giving their testimony; and if, under these circumstances the voter would be responsible for the expense incurred in proving his identity, would it be any greater hardship to require Mm to pay the clerk’s fee for the certificate allowed to be’ issued by that officer?

It is further urged in criticism of the act that it is defective, because it allows the county clerk to issue registration certificates in lieu of those lost by voters, without other proof of such loss than their mere affidavits, and does not in express terms provide for the preservation of such affidavits. The first of these objections overlooks the fact that the registration books are on file in the county clerk’s office from the time they are completed and returned by the registration officers. And when an application is made to the county clerk for a certificate in lieu of one claimed to be lost an examination of the registration books by the clerk would show whether or not the name of the applicant appeared therein, and, if not, it would clearly be the duty of the clerk to refuse him the certificate, notwithstanding his affidavit therefor. The second objection teems to be equally untenable. The requirement of the act is that affidavits *693showing the loss of registration certificates by the voters must be filed with the clerk. When filed, they become records in his office, and are to be preserved as such like other records that are required to be filed.

It is further urged that the act is defective in that it fails to provide penalties for violations of its provisions. It must be borne in mind that the act in question is intended to amend a statute in regard to registration, already in existence, which statute contains penalties that will apply to violations of the statute as amended. The fact that such penalties will not cover all offenses that may arise under the statute as amended does not make the amendatory act unconstitutional. The remedy lies in the enactment by the Legislature of a further amendment providing such additional penalties as may be needful.

Our attention has been called to the fact that the act fails to provide for the issual by the county clerk of original certificates of registration to persons who may be registered by him during the three days of supplemental registration provided for by sections 1498, 1499, Kentucky Statutes, 1903. This omission does not, in our opinion, affect the validity of the amendment. As the county clerk is the only officer authorized to register voters entitled to avail themselves of that right during the period fixed for supplemental registration, it will require no tortured construction of the statute as amended to say that he may issue to the voters admitted to registration by him certificates of registration, which shall as fully entitle them to vote at the election as if they had been issued by the officers intrusted with the duty of holding the first, or regular, registration.

We are not required to pass upon the policy of its enactment, but as to the constitutionality of the act we have no doubt. Wherefore the judgment of. the lower court is re*694versed, and cause remanded, with directions to that court to sustain the demurrer to the petition, and for further proceedings consistent with this opinion.

Opinion by

Judge O’Rear

on rehearing:

In a petition for rehearing, another ground has been presented by appellee, upon which it is urged that the act discussed in the original opinion is void, a~i being violative to the Constitution. Section 147 is relied on. That section reads: “The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more; and may provide by general law for the registration of other voters in the State.” It is argued that the section divides all voters of the State into two classes, viz., those residing in cities and towns having a population of 5,000 or more into one, and all other voters into the other; that, as to the former, the Legislature was compelled to provide a system of registration, but, as to the latter, it was permitted to do so or not, but that if it did, then all must be required to be registered, or none could be. Before the present Constitution, registration in this State was not required at all by any general law. That instrument made it compulsory that all voters residing in cities and towns of 5,000 population, or greater, should be registered. Beyond that, the Legislature was left a free hand, except that it was compelled to provide for any additional registration by general laws only. It was not required that, if other registration was deemed expedient by the Legislature, all other voters should be registered. “Registration of other voters in the State” was allowed, but it was left to the General Assembly to classify them by general laws. It.is in no sense class or special *695legislation to classify voters resident in cities or towns separately from those resident in the country.

Petition overruled.