
    Daggett v. Hudson.
    
      Elections — Registration of voters — Constitutionality of act May 4, 1885— Reasonableness of provisions.
    
    1. The general assembly, under the general grant of legislative power, secured to it by the constitution, has power to provide by statute for the registration of voters, and to enact that all electors must register before-being permitted to vote.
    2. Such an act, however, to be valid, must be reasonable and impartial, and calculated to facilitate and secure the constitutional right of suffrage, and not to subvert or injuriously, unreasonably, or unnecessarily restrain, impair, or impede the right.
    3. The.registration act of May 4,1885 (82 Ohio L. 232), relating to elections in Cincinnati and Cleveland,' requiring registration in all cases as a. condition to the right of suffrage in those cities, and allowing the voters only seven specified days within the year in which to register and correct the registration, which contains no provision for registration after-the seven days (though five days thereafter intervene before election day), and no regulation whereby those constitutionally qualified, may, upon proof of their qualifications, and a reasonable excuse for not registering in time, be allowed to vote, and where no other means are provided whereby persons necessarily absent at the time fixed for registration may have their names registered, is unreasonable, and has a direct tendency to impair the right of suffrage, and may disfranchise without their fault a large body of voters necessarily absent from the place of registry during the allotted time for registration, and is, therefore, unconstitutional and void
    On November 30, 1885, Edward Daggett filed in this court a petition alleging that he was imprisoned and unlawfully restrained of his liberty by one Edwin Hudson, superintendent of police of the city of Cincinnati, and he asked that a writ of habeas corpus might be granted, and that he might be discharged from such unlawful imprisonment and detention.
    A writ of habeas corpus was issued, and on the return day thereof, to wit, November 10, 1885, in obedience thereto, defendant produced the body of Edward Daggett in court, and made return to the writ, and therein averred that he held, and had in custody the said Daggett by virtue of a warrant duly issued by the police court of the city of Cincinnati, as follows :
    The State of Ohio,)
    Hamilton County,)
    City of - Cincinnati.)
    ss. The Police Court of the City of V. Cincinnati J Cincinnati.
    
    Before me, George E. Richards, clerk of the police court of the city of Cincinnati, personally appeared John Clear, who, being duly sworn according to law, says, that on or about the 13th day of October, 1885, at the city aforesaid, one Edward Daggett, L. D. Eletcher, and W. Roberts, were the duly qualified judges of election of precinct C of the Fifth ward in said city at an election for state and county officers, and while acting as said judges aforesaid, did unlawfully and knowingly receive and deposit the vote of one A. II. Bugher, who was then and there an elector and resident of said precinct C of said Fifth ward in said city aforesaid, but who from, absence had not registered his name with the registrars of said precinct and ward before said election, as was required by the laws of Ohio, contrary to the fornq of the statute in such cases made and provided as deponent verily believes; and further deponent says not. John Clear.
    Sworn to and subscribed before me the 2nd day of November, a. d. 1885.
    George E. Richards, Cleric P. C. C.
    
    By George Trummiter, Deputy.
    
    
      
      “ The State of Ohio)
    
    County,)
    n., j? n- ■ ,• City of Cincinnati.)
    ss‘ The Police Court of the City of Cincinnati.
    
    
      To the Superintendent of Police of the City of Cincinnati. Greeting:
    . You are hereby commanded to take the bodies of Edward Daggett, L. D. Fletcher, and W. Roberts, and have them before the honorable judge of the police court of said city forthwith, to answer unto the state of Ohio, charged with receiving and depositing an unlawful vote. And of this writ make legal service and due return.
    Given under my hand and the seal of said court this 2nd day of November, a. d., 1885.
    George E. Richards,
    [seal.] Clerk of Police Court of the City of Cincinnati.
    
    By Geo. Trummiter, Deputy.”
    
    Wherefore the respondent having fully answered, prayed that the writ be dismissed, and that Edward Daggett be remanded to his custody, and that he might have his costs, etc.
    To this return the petitioner demurred generally, alleging the return to be insufficient to warrant his arrest and detention.
    
      Follett, Hyman $ Kelley, and Jordan, Jordan ‡ Williams, for plaintiff:
    The registry act of May 4, 1885 (82 Ohio L. 232) contravenes section 1, article 5 of the constitution, inasmuch as it abridges and restricts the qualifications of voters as fixed by that provision.
    The legislature has not the power, under the guise of regulation, to restrain, abridge or unnecessarily impede the citizen in the exercise of the elective franchise. Monroe v. Collins, 17 Ohio St. 665; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Dells v. Kennedy, 49 Wis. 555 ; Brightly Elec. Cas. 62, note.
    
      The act is unreasonable as a regulation because it disfranchises those who may be unable through sickness or otherwise to attend on the days assigned for registration, but who are present at the polls, and'desirous of voting on election day.
    Upon an examination of the authorities, it wdll be seen that where registration laws have been upheld by the courts, the decisions have either been based upon constitutional provisions specially authorizing such legislation (People ex rel. v. Kopplekom, 16 Mich. 342; State v. Bond, 38 Mo. 425 ; Ensworth v. Albin, 46 Mo. 450; Auld v. Walton, 12 La. Ann. 129), or the act itself was a reasonable regulation of the right to vote, and authorized registration on election day (Capen v. Foster, supra; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28 Iowa, 267 ; Patterson v. Barlow, 60 Pa. St. 54.)
    The only restrictions upon the right of suffrage are those imposed by section 6, article 5 of the constitution relating to idiots and insane persons, and the authority given to the general assembly by section 4, article 5, “ tb exclude from the privilage of voting • • • any person convicted of bribery, perjury, or other infamous crime.”
    The act can not be permitted to stand with respect to electors who can comply with its provisions, and to fall as to those who can not. Kelley v. State, 6 Ohio St. 269.
    The act is general in its nature and should have a uniform operation throughout the state, and inasmuch as it applies to the cities of Cincinnati and Cleveland alone, it is in contravention of sec. 26, art. I, of the constitution. State v. Powers, 38 Ohio St. 54; McGill v. State, 34 Ohio St. 228; Kelley v. State, supra; Falk, Exp., 42 Ohio St. 638; Pavonia Horse R. Co. v. Jersey City, 45 N. J. Law, 297.
    
      E. W. Kittredge, for defendant.
    The constitutionality of the law in- question is impugned upon two grounds; first, because it places restrictions upon the elective franchise additional to those imposed by the constitution; and second, that it is a' law of a' general nature, and‘should have a uniform operation throughout the state.’ ‘
    1. The question is, whether the registration law is an act limiting the elective franchise, or simply an act providing for the manner of its exercise.
    While the constitution has prescribed the qualifications of an elector, it has provided no means for ascertaining those qualifications, and nothing in respect to the evidence by which they are to be established, or the persons whose judgment and determination shall bo applied in passing upon the right of an individual citizen to exercise the franchise of an elector at any given election. All of these questions are left to the broad discretionary power of the general assembly, and are included in the express provision that the election of all officers “ shall be made in such manner as may be directed by law.” Lehman v. McBride, 15 Ohio St. 595 ; Monroe v. Collins, 17 Ohio St. 686.
    The case of Capen v. Foster, 12 Pick. 485, cited with approval in Monroe v. Collins, supra, is the leading authority in this country upon the question whether a registration law, in its substantial provisions like the one under consideration, is a reasonable regulation of the exercise of the franchise of electors to protect it from fraud, or is an' unwarrantable restriction of the franchise, as defined by the constitution. And the coui’t upheld the law there under consideration as a just exercise of the power of the legislature to provide suitable and reasonable regulations for the exercise of the elective franchise.
    There are numerous provisions of the laws of Ohio that have been enacted for the purpose of' regulating, by protecting, the elective franchise, and that have been enforced many years without question ; such as providing, in certain cities under certain circumstances, that the voting places for the election of representatives to congress shall be fixed at a distance-of not less than two hundred feet from the voting places for other officers; provisions for particular kinds of ballot-boxes; discriminations as to the length of residence within the voting precitict that’ shall be required from the voter'who is' the'head of a family, and from the voter who is not such head of a family, as a qualification for the right to vote in such precinct; and divers other provisions of like general character.
    While there are two decisions, by divided courts, that are more or less not in accordance with the'views expressed in Capen v. Foster, supra, it will be found that the great weight of authority outside of the state of Ohio, and since the decision of Capen v. Foster, has been in accordance with the decision in that case. The two cases referred to which were decided by divided courts, were the cases of Dells v. Kennedy, 49 Wis. 555, and Page v. Allen, 58 Pa. St. 338. The latter court having in the meantime changed two of its judges in the subsequent year, in the case of Patterson v. Barlow, 60 Pa. St. 55, again by a divided court, but the new judges changing the majority opinion upon the subject, reversed the decision in Page v. Allen.
    
    The enactment of such laws is within the constitutional power of the general assembly. Edmonds v. Banbury, 28 Iowa, 267; In re The Polling Lists, 13 R. I. 729 ; McMahon v. Mayor of Savannah, 66 Ga. 217; State of Kansas v. Butts, 31 Nan. 537; Cooley Const. Lim. *601.
    2. The regulation of the elective franchise is a proper subject for classification, within the requirements of the constitutional provision, that laws of a general nature shall have a uniform operation throughout the state. Lehman v. McBride, supra; McGill v. The State, 34 Ohio St. 249 ; The State ex rel. v. Parsons, 40 N. J. Law, 8.
    The presumption in favor of the constitutionality of statutes when challenged under this provision, is entitled, to peculiar weight. The State v. Powers, 38 Ohio St. 63.
    
      Boynton § Hale and F. T. Dickman, also for defendant.-
    Legislation is manifestly required to carry into effect sec. 1, art. 5, of the constitution relating to the qualifications of electors. No person has the unqualified right to vote at any election. Certain- things -or facts are to exist as essential and indispensable “ qualifications ” of the right, and until these “ qualifications ” are ail possessed, the right to vote is not conferred and hence does not exist; and whether they all exist is and always remains a question of fact to be determined by evidence or proof; and the mode and kind of proof and the tribunal or board before which it is to be made, are necessarily the subject of regulation by the law making power.
    The only condition or restriction that the constitution places on the legislature in the designation or means, is the implied one that they shall be uniform, impartial, and not so unreasonable as to defeat the right. And in determining whether the regulations are such as to invade or destroy the right, much is to be allowed to legislative discretion and judgment. Monroe v. Collins, 17 Ohio St. 686.
    The act provides ample and convenient times to register, and prevents only those persons from voting who fail or neglect so to do. A voter may be unable to attend the election, or, if he attend, he may be unable to make the required proof of his right to vote, and is therefore denied the privilege. He would in either case lose his vote, not by any fault in the law, but by his own fault or misfortune. The loss of his vote is incident to the administration of the law, as it may to the act requiring registrations. But this is in no sense a ground for pronouncing the law invalid. Capen v. Foster, 12 Pick. 485 ; Patterson v. Barlow, 60 Pa. St. 78.
    The following cases will be found to bear directly on the question under consideration : Webster v. Byrnes, 34 Cal. 273 ; State ex rel. Wood v. Baker, 38 Wis. 71; Edmonds v. Banbury, 28 Iowa, 271; In re McDonough, 105 Pa. St. 488; Ensworth v. Albin, 46 Mo. 450; People v. Laine, 33 Cal. 55 ; Kansas v. Butts, 31 Kan. 537; McMahon v. Mayor of Savannah, 66 Ga. 217; Davis v. School District, 44 N. H. 398.
    That the act was one of a general nature under the power of classification, is quite thoroughly settled. State v. Brewster, 39 Ohio St. 653; State v. Powers, 38 Ohio St. 63; Exp. Falk, 42 Ohio St. 644; The State v. Pugh, 43 Ohio St. 98; Bronson v. Oberlin, 41 Ohio St. 476; McGill v. State, 34 Ohio St. 228; The State v. Parsons, 40 N. J. Law, 123; Wheeler v. Philadelphia, 77 Pa. St. 338; People v. Wright, 70 Ill. 388; Iowa R. L. Co. v. Soper, 39 Iowa, 112; C. B. & Q. R. Co. v. Iowa, 94 U. S. 155; In re N. Y. Elevated R. Co., 70 N. Y. 350; In re Application of Church, 92 N. Y. 4; Kilgore v. Magee, 85 Pa. St. 401.
    
      E. G. Hewitt, E. F. Noyes, and Thos. McDougall, also for defendant in error, filed no briefs.
   Atherton, J.

The ground upon which the return is claimed to be insufficient is that the act passed May 4,1855, (82 Ohio L. 232), entitled “ an act to provide for ascertaining the citizens who shall be entitled to vote in cities of the first and second grades of the first class, by amending and supplementing section 2926 of the Revised Statutes,” is unconstitutional and void.

It is claimed that the provisions of that act are in violation of section 1, article 5 of the constitution, which reads :

“Every white male citizen of the United.States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as maybe provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.”

In Pennsylvania the supreme court held that a registry law was unconstitutional on the ground that it impaired the free exercise of the right of suffrage as conferred by the constitution, and that “no constitutional qualification of an elector can in the least be abridged, added to, or altered by legislation, or the pretense of legislation.” Page v. Allen, 58 Pa. St. 338, 347.

And the supreme court of Wisconsin held:

“ That part of section 8, chapter 235, Laws of 1879, which provides that no vote shall be received at any general election unless the name of the person offering to vote be on the register completed by the board of registry, as previously provided in said act, excepting only the case of persons who may ¡have become qualified voters before such election, but after the completion of such register — is in violation of section 1, article 3 of the state constitution, which defines the qualifications of electors; and that provision being an essential part of the act, without which it can not be supposed that the statute would have been enacted, the whole act is invalid.” Dells v. Kennedy, 49 Wis. 555.

In these states, like ours, there was no constitutional provision requiring or expressly authorizing registration.

Registration laws are in terms either authorized or required to be enacted by the constitutions of the following states: Alabama, Arkansas, Florida, Georgia, Illinois, ¡Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Noi’th Carolina, Rhode Island, South Carolina, Virginia, and West Virginia. The constitutions of the following states are silent on the question: California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, Texas, and Vermont.

The question here presented is whether, in the absence of constitutional provisions expressly authorizing it, the legislature can by its general grant of legislative power, and for the purpose of “ ascertaining the citizens who shall be entitled to vote,” enact registration laws.

The leading case upon this subject is admitted on all sides to be Cayen v. Foster, 12 Pick, 485, and as will be seen by the foregoing list, was determined by the court of last resort of a state whose constitution was silent on the subject of registration. ■

A statute was enacted establishing the city of Boston, and in section 24 of the act it was provided that prior to every election it should be the duty of the city officers of that city to make a registration of voters, and that no person should be entitled to vote whose name was not borne on the list. The supreme court held that the provisions of that act were not to be regarded as prescribing a qualification in addition to those which .by the constitution, entitles a citizen to vote, but only a reasonable regulation of the mode of exercising the right- of voting, which it was competent for the legislature to make.

So, in Wisconsin, where the constitution was also silent on the subject of registration laws, the supreme court held that although the constitution, section 1, ■ article 3, prescribed the qualifications of electors, and that a statute could not impair the right of those possessing them, they might require proof thereof, consistent with the right itself, and that the registry law of that state was valid so far as it provided for a register of qualified electors to be made in the manner thérein prescribed, and constituted such register one mode of proof of the elector’s right, and so far also as it requires the elector whose name is not upon such register to make other reasonable proof of his right to the inspectors of the election at the time of offering his vote. State ex rel. Wood v. Baker, 38 Wis. 71.

So, in Iowa, it was held that while the right to vote by one possessing the qualifications of an elector, as prescribed by the state constitution, can not either be, destroyed or impaired by the legislature, yet that the legislature may regulate the exercise of the right by enacting provisions for determining the age, length of residence, etc., of persons offering to vote, and that the registry law of that state providing for the registration of voters, was not in conflict with the constitution, prescribing the qualification of electors. Edmonds v. Banbury, 28 Iowa, 267.

This court has adopted the doctrine laid down in the case of Capen v. Foster, supra. Monroe v. Collins, 17 Ohio St. 666, 687.

Other decisions of like character might be cited; and we think the current of authority is opposed to the decisions in Page v. Allen and Dells v. Kennedy, in so far as they may be understood to pronounce against the constitutionality of all registration laws, and that -it is competent for the legislature, under the general powers of legislation granted to it by the constitution, to provide for a general registration of voters, and making the fact of registry a condition to the exercise of the right of voting.

The power being conceded, the legislature is supposed to know best the wants of the state in that regard, and it is not for the courts to question the wisdom of making such enactments.

Registration is one of the modes in which purity in elections may be attained, and every honest and qualified voter has an interest in securing the integrity of the ballot and excluding the ballots of the dishonest and unqualified.

Every honest voter is as much injured by the reception of a fraudulent vote as by the exclusion of his own, and it makes but little difference to him whether his vote is wrongfully excluded or completely neutralized by the ballot of a person unqualified. Among the safeguards that we deem most efficacious to prevent fraud, insure integrity at the polls, and enable the honest and qualified elector to exert his just influence, and control the result, is a wise system of registration; and we are satisfied that it is within the constitutional province of the legislature to enact a wise registration law, that, without in any way abridging the rights of qualified electors, or adding any unlawful qualifications to the voter, may secure the purity of the election by a registry law, so framed as to be a reasonable regulation of the mode of exercising a constitutional right.

But it is claimed in the case at bar that, admitting the general right to enact a proper registration law, the act under consideration is unconstitutional, because it does not contain reasonable regulations as to the right to vote, but imposes on the voter unreasonable and unnecessary restrictions, and “under the pretense and color of regulating, subverts and injuriously restrains the right itself.”

In Capen v. Foster, supra, 489, the court, after declaring the enactment of a registry law to be clearly within the just and constitutional limits of legislative power, as a reasonable and uniform regulation to secure and facilitate the right of voting in a prompt, orderly, and convenient manner, yet say that such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain the right itself.”

The language of this case is adopted by our own court in Monroe v. Collins, supra. And on page 685, Welch, J., delivering the opinion of the court, says:

“ What the legislature can not do directly it can not do by indirection. If it has no power expressly to deny or take away the right, it has none to define it away, or unreasonably to abridge or impede its enjoyment by laws professing to be merely remedial. The power of the legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. All reasonable latitude should be allowed to the legislature in the exercise of this power of regulation, and every reasonable intendment in favor of the constitutionality of laws enacted for that purpose, should be made by the courts. Such laws are not to be held unconstitutional unless clearly so, and if they will at all bear a construction which makes them consistent with the constitution, they are to receive that construction, and so to be upheld. The true line between laws which take away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the supreme court of Massachusetts in Capen v. Foster, 12 Pick. 488. It was there held, substantially, that laws of the latter description must be reasonable, uniform; and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote.”

In Capen v. Foster, the court further say, p. 494: “ Still, if the provision of this law is such as to afford the voter no opportunity to know seasonably whether his name is on the list or not, and to have it inserted if previously omitted, it would constitute a serious objection to its validity;” and this is thequestion nowpresented for our determination.

In discussing the legislative power to regulate the right. of voting, the supreme court of Pennsylvania say: “ The right must not be impaired by the regulation. It must be regulation purely, not destruction. If this were not an immutable principle, elements essential to the right itself might be invaded, frittered away, or entirely exscinded under the name or pretense of regulation, and thus would the natural order of things be .subverted by making the principal subordinate to the accessory.” Page v. Allen, supra, 347.

The supreme court of Wisconsin, in discussing the registry law of that state assert:

“ The statute must be so construed as to reconcile all its provisions to the unimpaired, unincumbered right of suffrage at the election.” State ex rel. Wood v. Baker, supra, 88.

Judge Brewer, pronouncing the opinion of the supreme court of Kansas, declares:

“Doubtless, under the pretense of registration and under the pretext of securing evidence of voters’ qualifications, laws might be framed which would cast so much burden as really to be imposing additional qualifications. . As for instance, suppose the law required all voters in the state to be registered on personal attendance at the state capítol, on the first day of the year, for every election taking place during the year. The legislature can not by in form legislating concerning rules of evidence, in fact overthrow constitutional provisions.” The State v. Butts, 31 Kansas, 554.

“No registry law can be sustained which prescribes .qualifications of an elector additional to those named in the constitution, and a registry law can be sustained. only, if at all, as providing a reasonable mode or method by which the constitutional qualifications of an elector may be ascertained and determined, or as regulating reasonably the exercise of the constitutional right to vote at an election.” Dells v. Kennedy, supra, 558.

The above declarations of courts of last resort might be multiplied and indicate the true tests of the constitutionality of statutes relating to the subject of registration where the voter’s name must be found on the registry to entitle him to vote.

The legislature has full power to regulate the right to vote, but no constitutional power to restrain or abridge the right, or unnecessarily to impede its free exercise. Under the pretense of regulation the right of suffrage must be left untrammeled by any provisions or even rules of evidence that may injuriously or necessarily impair it, and so the citizen can not forfeit the right except by his own neglect or by such peculiar accidents as are not attributable to the law itself. So upon this part of the case our conclusion is that the legislature may enact registration laws, but they must be for regulation only, and must not unnecessarily abridge or impair the fight of suffrage secured to every elector by the constitution.

With that view we are to examine the provisions of the act in question, and by the tests given it must stand or fall.

Sec. 2926 provides for constructing election precincts.

Sec. 2926a provides for the appointment of registers.

Sec. 29266 provides that the registers shall attend at the usual places for holding elections on the third Thursday preceding every general election, from 8 a. m. to 9 p. M., for the purpose of registering voters, and be in attendance there for a like purpose for five successive days.

Sec. 2926c provides the mode of recording the names.

Sec. 2926d. ITow registers are to prepare lists to be posted up.

Sec. 2926e provides that registers shall be'in attendance again on the Wednesday preceding a general election,-for the purpose of revising and correcting the lists of voters, adding the names of those who will be entitled to vote at the ensuing election, etc.

It will be seen by the above there are but seven days in the year when voters can register. These are the six days commencing on the third Thursday preceding the election and the Wednesday preceding the election.

There is no provision for registering at pleasure during the earlier part .of the year, and no provision for proving qualifications on election day, and voting; and by sec. 2926e it is declared that “no vote shall be received at any election aforesaid unless the name of the person offering to vote be on the registry,” etc.

A voter who is the oldest inhabitant of the ward, and an elector in it for the greater part of his lifetime, if from absence, however necessary or unintentional, during the seven days, can not vote if his name is not on the registry. Many absentees may get home to vote, and if they were afforded opportunities during the year might also register, whose right of suffrage must necessarily be lost under the act.

How many mechanics may be absent, pursuing their trades during the seven days. A large number of persons will be away on steamboat and other sailing craft, and elsewhere earning a support. A large number of students, a great many of the class usually termed commercial travelers will be away, perhaps planning their trips to be home on election day. A large number of citizens in government employ, at Washington and elsewhere, will be at their post of duty, and may return to vote, but would hardly have the opportunity to return on a different day to register. Even the members of this court might be unable to register without a decided detriment to the public business, and might be compelled to elect between the neglect of important official duties and the loss of suffrage.

Is it a proper regulation of the constitutional right and privilege to say that the right shall be lost unless the elector appears in person during these seven days to register ? Is it reasonable to say that all these persons can not register either before or after the seven days; that they can not make application for- registration in writing upon oath, however well known, but must appear at these arbitrary times in person or lose their rights? As to this large class of persons necessarily absent during the time allotted for registration by the act, is this reasonable regulation, or is it an abridgment and impairment of the right to vote under the guise of regulation ?

What the legislatures have deemed reasonable regulation elsewhere may be learned by reference to the provisions of the registration laws of other states, especially where these acts have been upheld by the courts.

The Massachusetts registration statute, construed and favorably considered in Capen v. Foster, supra, required lists to be made of all electors of each ward qualified to vote, and that no person should be entitled to vote whose name was not borne on the list. But it was specially required that the selectmen and assessors should be in session immediately before or on the day of election, so as to give the voter an opportunity to then place his name on the lists if it had been omitted.

The Pennsylvania registry law provided that the assessors, on the first Monday of June, annually, should revise the transcripts received by the county commissioners and strike off those who have died or removed, and add to the list any one entitled. Copies of these lists are to be posted up where the elections are to be held by August 1, and that an unregistered voter otherwise qualified could on election day make an affidavit of his qualifications, and prove by the affidavit of a qualified voter his residence, and by filing the same could vote at the election. In re Election of McDonough, 105 Pa. St. 488.

The registry law of Iowa prohibited all persons from voting unless the name appeared upon the registration list, but an elector unregistered but otherwise qualified was permitted to vote upon a proper reason being furnished for not having registered in time and furnishing the affidavit of a registered voter as to his proper residence. Edmonds v. Banbury, 28 Iowa, 267.

The registry law of California, though prohibiting a citizen from voting whose name did not appear on the registry, yet permitted a qualified voter, though unregistered, on furnishing proofs of his right, and on the day of election furnishing the board of registration his affidavit setting forth satisfactory reasons why he did not register prior to the thirty days provided by law for registration before the election. People v. Laine, 33 Cal. 55 ; Webster v. Byrnes, 34 Cal. 273.

The election law of New York, of 1865, provides that the board of registry shall be in session on the Monday before the election for the purpose of making corrections in and revising the lists of voters, and the act of 1872 provides the registry shall be completed on the Saturday before the election — but neither of these acts have been subjected to judicial tests as to their constitutional validity.

The election law of Illinois prohibits the ballot of unregistered voters, except that it allows such voters, on making proof of their constitutional qualifications on election day, to vote without even requiring proof of a reason for not registering. Byler v. Asher, 47 Ill. 101.

The election law of Kansas provides for closing the registry ten days before the election, but permits the voter to register at all times during the year except the last ten days. State v. Butts, 31 Kansas, 537.

The registry act of Missouri requires the registration of voters to be completed ten days before the election, but the same simply follows the requirement of the constitution of that state.

In the state of Maine the selectmen are required to make lists of voters, and in towns' of over five hundred electors the names of legal voters may be added during the three days next preceding the election, and to the hour of five of the secular day prior to the election — and in towns of less population, the selectmen must be in session on the day of election for the purpose aforesaid. Revised Stat. of Me. 95.

In New Jersey, in cities of over a hundred thousand population, no person is permitted to vote unless registered ;■ but his name may be placed on the registration list upon the personal appearance of the elector before the board, or upon the production of his affidavit, or the affidavit of some other voter in the precinct, showing him to be a legal voter therein. Revision of Statutes of New Jersey, 364, section 152.

In Maryland, a list is to be made of all legal voters by registration officers, and such lists are thereafter to be corrected, but the lists so made are declared to be the legal and qualified electors and entitled to vote at all future elections, and annual registration is not required. The statute provides, however, for making additions to and corrections of the lists to within three days of the election. Supplement to Maryland Code, 240, et seq.

In Alabama l’egistration is required as a condition to vote, but the assistant registers are required to be present on election. day, at the election precinct, to register such voters as may have failed to register on any previous day. Code of Alabama, 23, section 233.

In Mississippi registration is required, and the registration lists are to be kept by the clerk of the circuit court: “ and any person not on the lists may appear at any time before the clerk and be registered.” Code of Mississippi.

The code of Arkansas provides for registration; but if the voter’s name does not appear on the lists he may still vote by taking an oath showing to the satisfaction of the election judges he is a qualified voter. Arkansas Stat. 471, section 2328.

We have been unable to find any case where a registration act has been upheld as constitutional which contained provisions similar to our statute. The necessary absence of a voter, on the seven days provided in the statute for registration, either by sickness, business, imprisonment, or other lawful reason, absolutely forfeits for the time being his constitutional right of suffrage. He can not anticipate expected absence, and register at an earlier period. He can not prove his right by his affidavit, or the affidavit of others, and excuse his personal presence at the place of registration. He can not on the day of election, or within five days prior thereto, by any proof of constitutional qualification, supply the want of former registration.

A foreigner who has taken out his first papers, and made his necessary declaration to become a citizen, and whose rights to full citizenship and the elective franchise will ripen during the five days before or on the day of election, can not secure registration or the right to vote, because he can not prove in advance that the action of the court will naturalize him.

We have deeply felt the gravity of the question here presented, and the importance to every citizen of its correct determination, and had hoped to find the provisions of the statute of such a nature that they might be upheld. We believe it an easy task so to frame a registry law that, while protecting the election from fraudulent votes, and securing the integrity of the ballot, it will in no practical way impede or injuriously restrain the constitutional right of the voter, but, in the language of Welch, J., in Monroe v. Collins, supra, the law must be reasonable, uniform, impartial, and calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to vote. Believing the act in question unnecessarily, unreasonably, and injuriously to impair and impede the right of suffrage to the voter who is necessarily absent at the times fixed by the act for registration, we ate unanimously of opinion that, we are compelled to declare it to be subversive of constitutional rights, and, therefore, void.

It has been suggested that while the act may be unconstitutional and void as to the voter necessarily absent, it might be upheld generally and as to all other classes of voters.

That question, we think, however, has been determined otherwise by this court.

It has been held that an ordinance of a municipal corporation prohibiting under a penalty the opening of a store or shop for business on Sunday, without exempting persons who conscientiously observe the seventh day. of the week, was opposed to the policy of the state law and void, and that a person may avoid it without showing lie belonged to the excepted class. City of Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.

“Although a statute may be unconstitutional in part and constitutional in part, yet where only one object is aimed at, and the same is unconstitutional, and all the provisions are contributory to it, and would not have been enacted but for the main object, the whole statute is void. Darby v. City of Wilmington, 76 N. C. 133; The State v. Sinks, 42 Ohio St. 345; The State v. Perry County, 5 Ohio St. 497.

This act is therefore unconstitutional and void as to all classes.

It has been strenuously and ably argued that the act in question relating as it does, to the regulation of the right of the citizen to vote, is of a general nature and must therefore, under the constitution, have a uniform operation throughout the state under that clause, requiring all acts of a general nature to have such uniform operation.

But the conclusions we have arrived at are conclusive of the case, and upon this and other questions raised in the argument, we prefer to express no opinion now.

The petitioner is ordered to be discharged from custody and to recover his costs.

Judgment accordingly.  