CHAPTER XXXVII.
NEW YORK.
Brief on the Legislature's Power to Extend the Suffrage, Submitted February 19, 1880, to the Judiciary Committee of the Assembly of the State of New York.
BY HAMILTON WILCOX.
I. Legislature Omnipotent.—Unlike the Federal constitution, the State constitution does not reserve all powers not expressly delegated. It is held by the authorities that in the absence of positive restriction the legislature is omnipotent.
"In a judicial sense, their authority is absolute and unlimited, except by the express restrictions of the fundamental law" (Court of Appeals, 1863, Bank of Chenango vs. Brown, 26 N. Y., 467; S. P., Cathcart vs. Fire Department of New York, Id., 529; Supreme Court, 1864, Clark vs. Miller, 42 Barb., 255; Luke vs. City of Brooklyn, 43 Id., 54).
"Only on the ground of express constitutional provisions limiting legislative power, can courts declare void any legislative enactment" (Court of Error. 1838, Cochran vs. Van Surlay, 29 Wend., 365; Newell vs. People, 7 N. Y. [3 Seld.], 9, 109).
"Before proceeding to amend, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption" (Court of Appeals, 1858, People vs. Supervisors of Orange, 17 N. Y., 235; affi'g, 27 Barb., 575).
II. Powers Undefined.—The constitution forbids the legislature to do certain things. Otherwise it does not define or limit the legislature's powers (Art. 3, §§ 3, 18, 19, 24).
III. No Prohibition.—No constitution of New York has ever forbidden the legislature to extend the suffrage beyond the classes specified by such constitution; nor has any ever forbidden unspecified persons to vote. The constitution simply secures the suffrage to certain classes, and there leaves the matter.
IV. Rule of Construction.—The constitution declares that the object of its establishment is to secure the blessings of freedom to the people (Preamble, Revised Statutes, vol. 1., p. 82). Hence it, and all enactments under it, must be understood and construed, where a contrary intent is not clearly expressed, to be aimed at securing freedom to all.
V. Disfranchisement.—The constitution follows this declaration by laying down at its outset, as its fundamental principle, that "No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizens thereof, except by the law of the land" (Art. 1, § 1, do., do.). Disfranchisement, then, must be express by the law. It cannot constitutionally be inflicted through mere implication or silence.
Rules for the securing of freedom have often been found to cover unforeseen cases. Such was the fact in the famous decision of Lord Mansfield in 1774, that slavery was against the common law, under which slavery was afterward abolished throughout the British empire; and the decision of the highest court of Massachusetts, that the terms of the constitution of 1780 conferred freedom on the slaves of that State.
Women, it is now fully recognized, are citizens, and hence "members of the State," entitled to the security guaranteed. The practice under the constitution has been to treat as disfranchised all persons not specified as entitled to vote. Though this practice is plainly against the declared object and principle of the constitution, it has been general and mostly continuous, and has thus acquired the force of law. This, however, does not impair the legislature's power to correct the practice by express enactment.
VI. Precedents.—The legislature has repeatedly corrected this practice by express enactments securing freedom to various portions of the people.
(a). Constitutional Convention, 1801.—The act calling this convention extended the suffrage for members of that body—the highest officers of the State—to "all free male citizens over twenty-one years of age," while the constitution secured suffrage only to male holders of and actual taxpayers on a fixed amount of real estate (Session Law 1801, ch. 69, p. 151; constitution of 1777, do., 1, 39).
(b). Constitutional Convention, 1821.—The act providing for the convention that framed the constitution of 1822, while the existing constitution (as above) only specified as entitled to vote, holders of and taxpayers on a fixed amount of real estate—this act allowed all freeholders, however small the value of their holdings, all actual taxpayers, all officers and privates, ex-officers and ex-privates, in militia or in volunteer or uniform corps, all persons exempt by law from taxation or militia duty, all workers on public roads and highways, or payers of commutation for such work; to vote on the question whether the convention should be held, to vote in the choice of delegates thereto—again for the highest officers of the State—and to vote on the question of adoption of the new constitution—to exercise a voice in framing the State's fundamental law. The council of revision, including the governor, which opposed and defeated part of this act, made no objection to this feature (Session Laws 1821, ch. 90, p. 83).
The vote for governor, 1820, was 93,437—the largest ever cast in the State. That on the question of calling the convention in 1821 was 144,247. One act of the legislature thus enfranchised fifty thousand persons. The vote on the new constitution stood: For, 74,732; against, 41,402; majority for, 33,330. Thus the votes of fifty thousand persons—enfranchised, not by the constitution but by the legislature—carried the adoption of a new constitution, which further secured to them the freedom which the legislature had opened to them. The vote for governor in 1824—the next hotly-contested election—was 190,545; so that the immediate effect of the legislature's act was to add 97,108 persons to the constituency—to make a mass of new voters who outnumbered those specified by the constitution.
(c). Aliens Voting.—The constitution specifies none but "citizens" as entitled to vote; yet the legislature, by a school law of many years' standing, allowed aliens to vote for school functionaries, on filing with the secretary of state notice of intention to become naturalized (1 R. S., art. 2, § 1, p. 65; 2 R. S., 63, § 12; 2 R. S., 1,096, § 31).
(d). Northfield.—The proprietors of swamp-lands in the town of Northfield, Richmond county, were authorized to elect directors of drainage, without any restriction or qualification but ownership (Session Laws 1862, ch. 80, § 2, p. 233).
(e). The taxpayers of Newport, Herkimer county, were authorized to vote on the question of issuing bonds to raise money for a town-house. Under this law women who were taxpayers voted (Act April 9, 1873, Session Laws, ch. 187, § 3, p. 304).
(f). The taxpayers of Dansville, Livingston county, were authorized to vote on the issue of water-bonds. Under this act women voted (Act April 24, 1873, Session Laws, ch. 285, § 4, p. 409).
(g). The taxpayers of Saratoga Springs were authorized to vote on the question of issuing bonds for the construction of an additional water-main. Under this ninety-nine women voted (Act May 13, 1876, Session Laws, ch. 254, § 4, p. 250).
VII. School Suffrage.—If the legislature can admit aliens to vote at school-meetings, it can admit female citizens to do so.
VIII. Presidential Suffrage.—1. The federal constitution provides that electors of president and vice-president shall be appointed "in such manner as the legislature thereof may direct" (Art. 2, § 2).
2. It also provides that "this constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding" (Art. 6, § 2).
3. The legislature has the power under the federal constitution to provide whatever method it may choose for the appointment of the electors. The courts have no power to interfere, and even an executive veto would have no force. The legislature has sole and full power to say who may vote for electors and how the election shall be held.