
    THE PEOPLE ex rel. EDWARD A. FROST and EDWARD A. FROST, Plaintiffs, v. JOHN H. WILSON, Defendant.
    
      Bight of suffrage—whence derived,—power of legislature to regulate—Chop. 570, Lams of 1872—effect of nen-complianee with, though not by elector—When statutes will be regarded as mandatory.
    
    The Constitution does not confer the right of suffrage, but recognizes it as an existing right, and either itself declares the qualifications of voters, or authorizes the legislature to provide for ascertaining them.
    The legislature, by virtue of its general legislative power, is authorized to designate the time and place of holding elections, and the officers who shall conduct the same, and by whom the results thereof shall be ascertained and determined. Laws upon these subjects are not unconstitutional, unless they take away or unreasonably restrict the right of suffrage.
    Section 6 of chapter 570 of the Laws of 1872, providing that no vote shall be received unless the name of the person offering to vote be on the register, made as therein provided, is constitutional and valid. The validity of the act is not affected by the fact that the right to vote is lost, not by any act of the elector, but through the acts and omissions of the officers appointed to prepare the register.
    
      Semble, that the legislature cannot require the courts to construe a statute according to its directions. It is the province of the courts to construe statutes according to the rules of construction established by them for their interpretation; the legislature may declare the purpose it intended to attain by the act, and it is the duty of the courts to so construe it as to effect the object intended, if it can be done consistently with the language used; but beyond this the legislature cannot go.
    Motion for a new trial on exceptions ordered to be heard in the first instance, at the General Term.
    This is an action in the nature of a quo warranto, to oust the defendant from the office of clerk of Monroe county, and to have the relator declared elected thereto.
    
      H. JR,. Selden and JBJ. JET. Woodward, for the relator.
    
      J. O. Gochrcme, for the defendant.
   Mtjllin, P. J.:

It was conclusively established on the trial that the register of the electors of the second ward of the city of Rochester, made in October preceding the general election, in the year 1873, was not made up from the poll-list kept at the election in 1872, as required by sections 1 and 2, of chapter 570, of the Laws of 1872. By the sixth section of said chapter, it is declared that “ no vote shall be received at any annual election in this State, unless the name of the person offering to vote, be on the said registry, made and completed, as hereinbefore provided, preceding the election. * * * This section shall be taken and held by every judicial or other tribunal as mandatory and not directory; and any vote which' shall be received by said inspectors of election in contravention of this section, shall be void, and shall be rejected from the count in any legislative or judicial scrutiny into any result of the election.” In obedience to the mandate of this section, the entire vote of the second ward must be rejected in ascertaining which of the candidates for the office of clerk of the county of Monroe was elected at the said election, unless the defect to which I have referred has been cured or may be disregarded. I confine the inquiry to the one defect above specified, out of several which have been insisted upon by plaintiffs’ counsel, because it is clearly established, and is the most important of the defects to which our attention has been called. The defendant’s counsel insists: 1st. That if it shall be held that the sixth section above quoted must be so construed as to deprive the electors of the ward of their votes at said election because of the neglect of the inspectors to register the voters, as required by said act, it is unconstitutional and void. His argument is, that the legislature has power by the Constitution to ascertain by proper proofs who are voters. The preliminary register provided for by sections 1 and 2 of the act of 1872, is not, in any sense, the proofs contemplated by the Constitution. It is prepared ex parte; no hearing is had or evidence given, and no determination as to who are electors. Irregularities or omissions, if any occur in making the preliminary register, are entirely immaterial, and cannot affect the right of the elector to vote. The right of suffrage is not conferred by the Constitution. It is recognized as an existing right, and it either declares the qualifications that the voter must possess, in order to entitle him to exercise the right, or it authorizes the legislature to provide for ascertaining who are entitled to vote. It is not under this provision of the Constitution, that the legislature makes laws regulating the manner in which elections shall be conducted; that is done by virtue of its general legislative' power. When the Constitution directs the election of public officers by the people, it is the duty of the legislature to pass laws designating the time and place for holding such elections, and designating the officers who shall conduct it, and by whom the results thereof shall be ascertained and determined. These subjects areleft entirely to the discretion of the legislature, and, unless it shall take away or unreasonably restrict the right of suffrage, the law cannot be said to be in violation of the Constitution. The power of the legislature to pass a registry law, whereby the name of every elector is required to be placed upon a register before the day of voting, in order to entitle him to vote, is not denied. It enables the legal voter to protect the ballot-box against the votes of persons not legally entitled to vote; and, to be of any substantial benefit, it must be made and completed a sufficient length of time before the election, to allow an investigation of the qualifications of the persons whose names are registered. To render the register of any value, there must be some forfeiture if the person who desires to vote has not procured his name to be registered, and that forfeiture should be, as it is, of his right to vote at the election for which such register is prepared. To allow names to be entered upon the list at the time votes are offered, is to defeat the purpose which the legislature had in view in framing the law, to wit: the prevention of illegal voting. The measures that shall be adopted to secure that end, are entirely in the discretion of the legislature.

The defendant’s counsel seems to concede that when the loss of the right is the result of the act or omission of the elector himself, the law which authorizes it is not in violation of the Constitution. But he insists that the right cannot be lost by the act or omission of officers appointed to make the register. The conduct of elections, like all other governmental operations, must be intrusted to officers selected for the purpose, and the rights of the elector may be made to depend upon the manner in which those officers discharge their duties. I am unable to perceive any distinction in this respect between the political and other rights of the citizen. The charters of municipal corporations frequently require the persons applying for the laying out of streets, or the making of sewers or other local improvements, to conform to provisions of the charters, regulating the laying out of streets, and making other improvements. In the course of such proceedings, clerks, assessors, the common council or other legislative body, are required to perform certain duties, and if not done at the time, or in the manner required, the proceeding is illegal, and persons applying fail to obtain the benefit of the street or improvement, and yet the fault is not attributable to the applicants. Every citizen who is a party to a lawsuit, has the right to have a court held, a jury summoned and impanneled, to try it when reache'd in its order. But if the jury has not been legally drawn or summoned, the cause cannot be tided, and the party’s right is gone without any fault on his part. A mortgagee leaves a mortgage with a county clerk to be recorded, but the clerk either omits to record it, or records it as being for a much less sum than the actual one, so that the lien is lost or the debt rendered worthless, and this without fault on the part of the mortgagor. It is unnecessary to multiply examples; the law books are full of them. If the legislature should assume to declare that if a citizen’s name was not placed on the register, preceding a general election, he should forever thereafter, or for any considerable time, be deprived of the right of suffrage, the provision declaring such forfeiture would, it seems to me, be void. But whether, because it would be in violation of the Constitution or of natural right, is not so clear. It would be assuming judicial power which the legislature cannot exercise. It may, however, deprive him of his right to vote at the election for which such register is made, and this without regard to whether the voter or the officer preparing the register is responsible for the omission of his name. If the provisions of the act of 1870 could be treated as directory merely, the register made for the election in 1873, might, and probably would, be deemed a sufficient compliance with the act, to require the votes given in the second ward to be counted and allowed. But the language of the sixth section is too plain to admit of any such construction. It declares that no vote shall be received at any election, unless the name of the person offering it be on the register, made and completed as thereinbefore provided. It is not enough that the name be on a register made by the inspectors; it must be on a register made and completed as required by said act. The register in question was not made in conformity with the act.

I was of the opinion, on first examining the case, that the provisions of the statute prescribing the manner in which the register should be made up, might be treated as directory merely, and that a substantial compliance therewith was all that was nebessary, and that the mandate of the sixth section of the act might be complied with, by limiting it to the requirement that no vote should be received from a person whose name was not found on the register. Could such a construction be given to the section, it would avoid the injustice that will be done in holding the act mandatory as to the manner of making up the register, especially where no wrong is intended, and no illegal votes received, or legal votes excluded. But the language of the section is too plain to admit of such a construction.

I do not think the legislature has any power to require the court to construe a statute according to its directions. It is the province of the courts to construe statutes according to the rules of construction they have established for their interpretation; but the legislature may, I have no doubt, declare the purpose it intended to attain by the act, and it is the duty of the courts to so construe it as to effect the object intended, if it can be done consistently with the.language used; but beyond this the legislature cannot go. To permit it to prescribe rules of construction, would be to assume judicial- as well as legislative power, thus practically to destroy one of the departments of the government. When the courts hold the provisions of a statute to be directory, and not mandatory, it is because such a construction will give effect to the intention of the legislature, without producing the mischiefs that would result from requiring a strict compliance with the statute. When a statute affecting the public, requires an act to be done within a given time, or in a particular manner, and there are no prohibitions against doing it at some other time, or in some other manner, the act is held to be directory. But it is the province of the legislature to declare that if the statute is not strictly complied with, the proceedings under it shall be void. It is immaterial in what manner the intention to make the provision of the act mandatory is declared, provided it is clearly expressed. Had the act of 1870 provided that the inspector of election should, conform strictly to its provisions or their acts would be void, the courts would have been bound to so construe the statute; and although the legislature might not have power to require the courts to construe the act as mandatory, and not directory, yet, such a requirement is a clear expression of the legislative intent, and effect must be given to it.

As the court rejected all the votes of the second ward, to ascertain which of the two candidates for clerk received the largest number of votes in the county, the whole number of votes taken in said ward must be deducted from the whole number of votes for clerk in the county; and, deducting the vote given in said ward ' for each of the contestants from the aggregate votes for each in the other towns and wards of the county, the person elected will be ascertained. The relator is thus shown to be entitled to the office.

There was some conflict in the evidence, as to whether the register was made from the poll-list of the charter election, held in the spring of 1873, or from that used at the general election in the fall of 1872, and this question, the defendant’s counsel asked the court to submit to the jury. The court refused, and the defendant’s counsel excepted.

[Here follows a statement of the facts in the case, from an examination of which the conclusion is reached, that the request to submit the case to the jury was properly refused.]

I have not examined the evidence in regard to the proceedings of the inspectors of the eleventh ward. The votes of that ward have been allowed to the defendant, and unless he was entitled to those in the second ward, he would not have a majority of the votes, and would not be elected. If the votes of the second ward are rejected, the plaintiff was elected; and it is immaterial to him whether the votes of the eleventh ward were or were not properly allowed to the defendant.

There must be a judgment on the verdict in favor of the plaintiff.

Present — Mullin, P. J., Smith and Talcott, JJ.

Smith, J., did not vote.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict.  