Dells v. Kennedy.

In case the voter knows, or has notice, that his name is not on the registry, the opinion further holds: "So that they have an opportunity, if they will, to remove the difficulty, each voter for himself, by complying with the statutory conditions. In such case, if a voter be disfranchised, he is by his own omission a voluntary party to his disfranchisement." This language was clearly and pointedly illustrative of the real question in that case, and is authoritative in its application to the law of 1879, and conclusive of this case.

The prohibition in section 8 is clearly unconstitutional and void. This section is the only portion of the act which provides for the legal effect and consequences of the registration, or want of registration, required and regulated by the other portions of the act, and which are essential to the full force, purpose and efficiency of such registration, and of paramount importance, and constitute the only substantial change of, and material difference from, the general law of the State requiring registration; and it is therefore quite apparent that the legislature would not have enacted the other portions of the act had they foreseen that the courts would declare such part of section 8 unconstitutional and void. This case is therefore brought within the rule repeatedly recognized by this court for declaring the whole act void. Slauson v. City of Racine, 13 Wis. 398; State v. Dousman, 28 id. 541; Slinger v. Henneman, 38 id. 504. Judgment reversed.

NOTE BY THE REPORTER.-TAYLOR., J., dissenting, observed among other things: "It is argued that the legislature has no power to impose any other conditions upon the right of the elector to vote than such as are prescribed by the Constitution; and it is urged that a registry law which requires the elector to make proof of his right to vote at any time before the day of the election is imposing a condition not recognized by the Constitution. All agree that the legislature must necessarily prescribe the manner of voting, designate the officers who shall receive and canvass the votes, the place where the votes shall be received, and the form of the ballot voted, and may also prescribe what proof the elector shall make of his right to vote at an election, and generally do all that may be deemed reasonably necessary to secure a fair and honest vote of the electors. If in the judg ment of the legislature, it be necessary that the proof of the elector's right to vote at any election, in order to secure a fair and honest vote, shall be made on some convenient day or days previous to the day fixed for the election, what constitutional provision forbids the legislature from requiring such proof to be so made? Certainly the law which is under consideration is not onerous in its provisions, and every elector can make his proof by procuring his name to be entered upon the proper register, at much less trouble and expense than would be required to make formal proof of his right to vote on the day of election; and yet it cannot be said that the legislature would not have the power to require each elector who offered to vote on the day of the election to furnish proof by his own affidavit, backed by the affidavit of some other person or persons, of his right to vote, and that on his failure to do so his vote should not be received."

"Experience has demonstrated that registry laws are necessary to insure a fair and honest vote in all large cities, and such laws have been enacted and enforced in such cities

Dells v. Kennedy.

in very many of the States of the Union for many years. In order to preserve even a pretense of purity in elections in the large centers of population, it is necessary that evidence of this right of the electors to vote should be produced before the day of the election, in order to enable the real electors to vote on that day; and it would be highly inconvenient, if not impossible, to make the necessary investigations on that day. Registration is in fact nothing more than a method of taking evidence beforehand of the right of the elector to vote on the day of the election. The registry law in question in this case throws no obstructions in the way of the elector who desires to vote. If he voted at the last previous election, his name is placed on the register without any action on his part; if he did not. he can have it placed there by appearing in person before the board, or by sending a written request to have it placed thereon. If his right to be registered is questioned, his name is placed thereon upon making the same proof he would be required to make if challenged on the day of election. There is no hardship in the law.

"It is urged that the voter may be sick or absent or imprisoned on the days when the registry is made. The law provides for these cases so far as it is reasonable it should provide. If the elector is absent, the law advises him when the registry will take place, and he may send his application to be registered in writing; he need not appear in person. Even if he were imprisoned, his right to send a written request to be registered would hardly be denied him. But these are all questions addressed to the consideration of the legislature, and not to the court. It is for the legislature to say what shall be sufficient to excuse the elector from registering as required by law; and when the legislature has passed a law which gives ample opportunity for every elector to register if he will, the court is, in my opinion, transcending its power in declaring the law void because the legislature has said to the elector, Unless you register you cannot vote.' There does not appear to me to be any middle ground. The elector has the absolute right to vote on the day of election if he has then the qualifications of an elector under the constitution, and is then ready to make proof of his qualifications, as was stated by the chief justice in the case of State v. Baker, 38 Wis. 71; or else he must, if required by law, furnish the proof of his right to vote by registering on the days fixed by the legislature previous to the day of election, or he may be prohibited from voting. That the elector may be absent on the days fixed for registering, that he may be sick or imprisoned, or that in the hurry of business he may wholly forget that he is required to register, until it is too late, cannot excuse the elector from doing that which is necessary to secure a fair election. These accidents are not the fault of the law, and cannot affect its validity.

"Every objection which is made to this law was made fifty years ago to a similar law in Massachusetts; and they were fully and most satisfactorily answered by Chief Justice SHAW in his opinion in Capen v. Foster, 12 Pick. 485. His argument in that case was so clear, exhaustive and satisfactory, and his conclusions so well established, that every court in the United States which has since had under consideration similar registry laws has fol. lowed and approved that decision, unless the case of State v. Baker be an exception. The law of Massachusetts, which was under consideration in that case, was subject to every objection which can be urged against the law of this State now under consideration."

"In Hyde v. Brush. 34Conn. 454, the court sustained a registry law which provided that no person should vote unless his name was on the registry; and the law of Connecticut provided, as our own law does, that the registry should be completed on the Wednesday before the election, except that persons who became electors by naturalization or age after that day might be entered on the register after that date. In People v. Kopplekom, 16 Mich. 342, the Supreme Court of that State unanimously declared the registry law of the State constitutional and valid, which prohibited any voter from voting whose name was not registered. The only difference between that law and the one under consideration in. this case is, that it permitted, in the discretion of the inspectors, a person to register and vote upon the day of the election upon his satisfying the inspectors, by his testimony under oath, that he was a qualified elector, and 'that owing to sickness or bodily infirmity of himself or some near relative residing in the same household (giving the name of said relative), or owing to his absence from the township on public or official business, or his own business, and without intent to avoid or delay his registration during the then last session of the board, he has been prevented from causing his name to be previously registered; and also producing some qualified elector, not a candidate for office at such

Dells v. Kennedy.

election, to make oath before the inspectors that he is well acquainted with the applicant for registry, and that he has good reason to believe, and does believe, that all the statements of the applicant are true.'

"In Edmonds v. Banbury, 28 Iowa, 267, the Supreme Court of Iowa held a registry law valid which prohibited the elector from voting unless his name appeared on the registry made and corrected previous to the election, but allowed the non-registered elector to vote p.ovided he made an affidavit showing that he was a qualified elector, and also 'showing a proper reason for not appearing before the board on the day for correcting such register, and the affidavit of a person whose name is on the register that he knows such person to be a resident of the township.'

· People v. Laine, 33 Cal. 55, and Webster v. Byrnes, 34 id. 273, the Supreme Court of California held a registry law valid which absolutely prohibited any person from voting whose name did not appear upon the register or poll list previously prepared. The law is very elaborate in its provisions: and although the elector msy, under certain circumstances, have his name entered on the poll list at any time before the poll of the election is opened, on the day of election, yet in order to get it entered thereon after thirty days before the day of the election, he must, in addition to further proofs, furnish the board of registration his affidavit setting forth reasons satisfactory to the board why he did not apply and procure the enrollment of his name on said poll list previous to said thirty days. in New York there has been a registry law for the cities of the State for more than fif. teen years, in all respects like the law now under consideration, except that the law of 1865 provides that the board of registry shall be in session on the Monday before the election for the purpose of making corrections and revising the same; and the law as amended it 1872 provides that the registry shall be completed on the Saturday next before the elec tion; but both the law of 1865 and that of 1872 absolutely prohibit every person from vot ing whose name is not on the register, and its constitutionality has never been questioned by the courts or the profession of that State. In the only cases which have been brought to our notice in the courts of that State in which the validity of the law might have been considered, it does not appear that its invalidity was suggested either by the counsel or the court. People v. Thacher, 55 N. Y. 525; People v. Wilson, 62 N. Y. 186. It would seem highly improbable that a law which infringed the constitutional rights of the electors of that great State would be quietly submitted to and remain unquestioned by the electors, the legal profession, and the courts of the State, for fifteen years and more.

"In Byler v. Asher, 47 Ill. 101, it was held that the registry law of Illinois was a valid law. This law is similar in all respects to the act of 1864 of this State, except that the non-registered voter was allowed to vote on making proof in the manner prescribed in the statute of his right to vote, on the day of the election, without showing any excuse for not registering. In this case the learned judge who delivered the opinion says: 'There can be no question that the legislature may provide all reasonable safeguards to preserve the ballot-box from fraud, and to maintain the purity of our elections. As the wisdom of our laws, and the fair and impartial administration of justice depend upon the officers chosen by the people, and even the perpetuity of our present form of government can only be maintained by preserving our elections free from fraud and corruption, all reasonable requirements for the purpose, not calculated to abridge the elective franchise, are within the scope of the legislative power.'

"Davis v. School District, 44 N. H. 398, although not a case arising under a registry law. involved the same principles, and the court cited Capen v. Foster with approval."

"The only cases which have been brought to our attention in which the power of the legislature to pass a registry law has been seriously questioned, since the decision in the case of Capen v. Foster, are Page v Allen, 58 Penn. St. 338. and Patterson v. Barlow, 68 id. 54. In the first case the majority of the court held the law of Pennsylvania then under consideration void; but it will be seen, by an examination of the case, that the third judge who concurred in the majority opinion holding the law void, did so expressly on the ground that it was so framed as to necessarily deprive one class of electors of the right to vote. Chief Justice THOMPSON, who delivered the opinion of the court holding the act void. bases his opinion upon two grounds: first, that it is impossible to execute the law; and second, that the law necessarily deprived one class of electors of the right to vote." Justices AGNEW and READ, who dissented and held the law constitutional, gave such a construction to the act as to avoid the difficulty found by the majority.”

Little v. City of Madison.

LITTLE V. CITY OF MADISON.

(49 Wis. 605.)

Municipal corporation — negligence · exhibition of animals in street — license. A city licensed an exhibition of wild animals, without specifying any place. Theownerexhibited them in a public street; whereby the plaintiff's wife sustained a personal injury. Held, that the city was not liable. (See note, p. 795.)

A

CTION of negligence for personal injury. The facts will be found in the former report of the case, 24 Am. Rep. 435. After that decision, the defendant answered, admitting that the officers of the city granted a license to one Carr to exhibit a bear or bears in the city, but denying that such license authorized such exhibition to be made upon any public street, and alleging, in substance, that the license was granted with full notice and instructions to Carr that the exhibition must be made "in some lot or inclosure or building away from the public streets and thoroughfares in said city." The answer further alleged, that if the exhibition was in fact given in a public street, it was so given in violation of said license, notice and instructions, and of law, and without the knowledge of the city or its officers or agents; and that if State street was incumbered or obstructed, or a nuisance was created therein, by such an exhibition, the city, its officers and agents, had no notice or knowledge thereof before the time of the injury complained of. The opinion states other facts. The plaintiff had judgment below.

Smith & Lamb, for appellants.

Gill, Bashford Spilde and Wm. F. Vilas, for respondent.

COLE, J. The learned Circuit Court instructed the jury, in substance, that the defendant city was liable for the injury sustained by the plaintiff's wife, if its police officers or proper authorities were negligent in failing to prevent the bear show in the street. This was supposed to be the meaning of the decision of this court on the former appeal, as reported in 42 Wis. 643; s. c., 24 Am. Rep. 435. It is possible that this is an admissible construction of the opinion, arising from its brevity, and from the failure of the writer VOL. XXXV-100

Little v. City of Madison.

to express with precision the real ground upon which the complaint was held good. But it is to be regretted that the opinion is open to that construction, for certainly the writer did not intend to rest the liability of the city upon any such ground. In Schultz v. City of Milwaukee, 49 Wis. 254 (ante, p. 779), Mr. Justice LYON states accurately the ground of that decision, in saying that "the complaint was construed as alleging that the authorities of the city expressly authorized or licensed the exhibition of the bears on State street, knowing the dangerous character of the exhibition." I say in the opinion, that the allegations of the complaint show that the agents of the city not only knowingly and carelessly allowed one of its principal streets to become obstructed by an exhibition of wild animals therein, which exhibition was calculated to produce injury to persons lawfully travelling along the street, but that it was averred that such exhibition was authorized and sanctioned by the city. By this language was meant that the city expressly authorized the bear show in the street; in other words, granted the license to Carr to exhibit the animals in that place according to the complaint. But it was not intended to affirm the doctrine that the city was liable if its police officers neglected to prevent the owner of the bears from making an improper use of the street for a show ground.

The distinction seems obvious between a case where the officers of the city authorize and license a show in the highway- that is, become themselves active agents in the commission of the wrong, - and one where they are merely negligent in preventing such show or improper use of the street. Doubtless the city officers were in duty bound to be diligent to prevent the show in the street where it might cause injury to persons travelling thereon. But if they failed to perform that duty, and an injury resulted from this omission, we do not understand that the law renders the city liable for such neglect. It was further suggested that the liability of the city arose from the fact that it granted a license for the exhibition, for which a fee was received which went into the city treasury. But this fee was not exacted merely for revenue. The granting of licenses for shows was a police regulation, and the fee demanded was not intended to be for revenue, strictly speaking. It appears in this case that the license was a general one "to give a bear show" on the day named. It was not necessary to state in the license that the exhibition was to be at a proper place, away from the public street. This would be implied. As a matter of fact, it appears