,254 trial: taurt i to deal ,witH ,the situation as inria.y arise; and to:so cQtldul:ltrthe, funher proceedings 'as to reach a final ieondusion with :the gnatef3t, and at theJeast' cost. : ' . We see 11? neqessi.1j)] fprIl;lo<;lifyiQg the order in the case In anyp,an1<;-qlari:1mQ. tlierefor;e entry now made is: $imply that the petition for rehearing is. denied.
In re (Oircuit
ApPOINTMENT OF SUPERVISORs·. S. D. Georgw"
oowrt,
w.:n.
November,1892.)
1.
CONGR.ESSIOlifAL ELECTIONS MENT. ..
Rev. St. §§ 2011, 2012, proV'idingfor the appointment of' supervisors of. congressional,election,on prOpe,!' application to t\le circuit jwlge,decl-ares t\l!l.t"thejudge, wit\liII' bot less than ,ten' days prior to the registrilHon, if' one t\lere be, or, if no registration be requitilld,"within not lesathan ten days prior to the election. shall open the circuit the,most convenie\lt point in thE! "when so opened shall proceed to appc;l1nt and commission from day to daY and from time to time, " etc. Held, registration, where. necessary, is not.such an integral part ,of the election. as tol1eqJi.il'!'l an application for the appointment of. a .supervisor of the election to' be made Within 10 days plioI' to the registrpotiQn,' rather than 10 days prior to the eleotion. . . The local registration laws of Georgia for the oountles of the state, which differ in material features as to the time, place, methods,anCl necessary qualifioationsfor reglstratio,l1, do not affect the appointment of federal supervisors of a general eleotion{becanse,theyare unconstitutional and void, underConst. Ga. 1877, art.'2,5 9, proviaing that' "the general' assembly maYP'l'ovlde from time to time for the a1;1 and article 1, 54, providing tjJ.at" 'ofa general nature. shall have uniform operation throughout the state,and no shall be enacted' in' any case tor. whioh pro'O'lsion has been made. by, an. exis:ting general j"since was already made by a prior general law, (Code, § 1278,) whioh empowers "any qualified voter for members of the general assembly to vote tor ailf oandidate or upon any question which is submitted 'to all the voters of the state, In any county in the state, and for any candidateorqu\lstion w\lich ill submitted to au the votera in any district' or circuit, in any county ot the district or circuit in which is embraoed the county of the voter's residenoe. " ', :
FEDERAL SUPERVISORS .
" ApPLICATIOl!'S FOIt APPOINT. ' '
,So
CoNSTITUTIONAL; LAw-LOCAL LEGIS1,.ATION-ELECTIONS--REGISTR.,rtON LAWS.
8.
SAMB-FBDBRAL SUTUTBS.
,laws are also void in that theY are ,in confUct with Rev. St. U.S. § 2005, which requires that all aftlcers oharged with the duty of furnishing to oitizens an oppQrtunityto qualify as voters under state laws shall give equal opportunity therefor. ,to q1tizens of the United States.
At LllW.,Applicationa for the appointment of supervisors of the for andre.presentatives in congress for WilkinsoI+ and Richmop.q counties, in, ,the southern district of Georgia. .,t\.pplications 1
certain provisions of. title. 26 of the JWvised circuit judge, uponpro.per application, is empowered to .appoint and co.mmissionsupervisors to guard and acrutinize elections. Vnder sectipn 2014 of the Revised Statutes, whenever the
IN RE APPOINTMENT' OF SUPERVISORS.
255
circuit judge is unable to perform this duty; heia required "to select and assign to the · performance thereof, his place, such one of the district courts circuit as he deems' best; and, upon such selection and assignment being made, the district judge so designated shall perform and discharge, in the, of the <)irouit judge, all the duties, powers, and obligations imposed and conferred upon the circuit court by the provisions hereof." In pursuance of the powers above stated, the presiding judge olthe district court of this the southern district of Georgia has been selected and assigned by the Honorable DON A. PARDEE, circuit judge of this 'circuit, to appoint and commission supervisors for the sOilthern:distnct of Georgia; in localities where applications have been properly presented, to guard and scrutinize the election for representativesincongress,to,'be held on November 8,1892. Among others, applicatioDlbhave been presented for the counties of Richmond and Wilkinson, in,:the southem' district,of Georgia and in the tenth congressional district :ofthestate. Having'b.eenapprised that applications for the appointment of supervisors, for the counties of Richmond and Wilkinson, would be presented, and that the court would be opened by the presiding judge of this district for election purposes,in obedience to the directions of the statute,: the Young Men's DemocraticL ague of Richmond county, by its president and .by:1acommittee, have made application to be heard in 0ppositionto·the appointment of supervisors for the two counties specified. The court having, in pursuance of their request, indicated that it would consider ,such suggestions in writing against the appointment as the representatives of that body might ,be pleased to submit, the objections following, have been submitted: "As a very carefully examIned the United States Revised Statutes. and have arrived attbe conclusion that the petitions for RuperVisors in Richmond! county and Wilkinson county were too late. and did not comply with in se,ctions 2011-2020. Supervisors are appointed (1) for,electiQIlsalone; or (2) for registration and election. In the first case they not pnly to Ilee ballots. cast. they must alsosee them counted; but supervisorS would not be appointed to connt ballots if they had not previously been required to see them cast. ,In like manner we think that in those cases where registration precedes voting, as voting precedes' counting. the registrationmust be supervised as an part of the election. or, at least. that, witho\lt wbich /liIl could not be haQ,. IIleg!ll registration so infects the rllsult that. if ,llqpenisors are to be appointed, it must be done in time for them to viey(that \yhich is essential to the deposit of the legjl.l ballots. ,Hence the law' makes it the duty of where is necessary.' attend at all' times' and places appointed for regIstration. to chailengepersol18 offering to register; to attend at all times and places where namesaf registered voters may be marked for challenge. to personally inspect and scrutinize such registry fOI" purposes of identification, to affix their sIgnatureto each page of th,e ,It seems to contemplate that thereby the;>; have knOWledge of the quali!ieatidrif;l of voters, and makes it their duty to challelige persons whose ,qUalifications they doubt. They are dirt'ctedon the day of registration to post themselves In snch manner' as wmbest conduce to their scrutiliizlng the manner in which registration 18 being ,done·. .All the way through the statute seems to treat registl'ation as
256
FEDERAL RIEP<lRTER,
vol. 52.
P'\tt.9t tf;)le 1l1,8Qtion, 8S:mucnrequidng supervision as the mere act ohoting it.. "".1,',t, 'iio
very clearly, sllown in § 2011, which ·'l'he not,' less than, te,n day,spr,lor to the registl'ation",i,f"O,n,Hthereb,e. be required, within not less than ten days prior to the open the circuit court,' By the aCt of a is r6q'Uirlld for Richmond county. By the acts of one is requIred for Wil. kinson oounty, and our position is that, the registration books being now al)d,np application haVing been made ten days prio/1 to tbe registrais now. too late ,for supervisQrll be appointed."
.,AJter the careful consideration of the views of the committee which the high character of its members, all of whom are distinguished membersofthe bar of this court, would naturally occasion,we find it impossible to' assent to their Section 2011 ·of the, Revised Statutes provides that "whenever, in any city or town having upward of twetitythousand inhabitaiIts, there are two citizens thereof, or whenever, in any· county or parish in any congressional district; there are ten citizens thereof, of good standing, who, prior to any regiStration 'of voters for'lln election for representatives or delegates in thecoDgtess of the UnitedStates,or prior to any election at which a representative or delegate;in congress is to be ,voted for, may make kn()wn in writing to thejudge of the circuit court of the United States ** their de. sire to ha:r-e such registration or such election, or both, guarded and scrutinized, the judge, ,within not less than ten days prior to the registration, one there be, or if no registration be required. within notle8s than ten days prior to, :theelection,shall open the .circuit court at the most convenient point in ·the circuit." Section 2012 provides: "The oourt,wheD so opened by the jUdge,'shall procood to appoint and commission, from day to day and from time to It will be per<:eivedat agllJ,nce ,that."by the stat,ute, the appointment ()f supervisors is to gUllrd,,apd the registrlltion: ,if there be a ,or the election, or both, as the applicants may desire. The language- oftbe statute must bear the construction which its words If1:heli'pplication is to have the scrutinized, the court)Il4st beopen,10 days the registration; if it is intended the election, 10 days eleqtion. The to guard¥d, statute -dqes not, in ()ur opinion. make ,it obligatory upon the supervisors to scrutinize the'. registration,unless the ap'plication is for that purpose. The opposite construction would nullify the IYption given the applicants,toma'ke known to the court their desire have such registration,or such election,qr both, guarded and scrutinized." The representatives of the Young ,Men's Democratic League, of course, ;rely :naturally upon the concluding clause of the statute, to wit: "The judge, within not less than ten days prior to the registration, if one there than ten days prior be, or, if no registration be required, within not to the the circuit court at the most convenient point in the circuit." Butt'his clause is merely directory of the' time in which the court sh8.ll ,be open for electionpurpQses, and neither confers nor denies nor limits the power to appoint supervisors. Indeed. section 2013 of the Revised Statutes, in the same title, provides that the powers and
*'.
IN RE APPOINTMENT OF SUPERVISORS.
257
jurisdiction conferred by the several sections in point shall be exercised as well in vacation as in term ·time, and the judge sitting at chambers shall have the same powers and jurisdiction. In other words, the jurisdiction of the court to appoint is in no sense modified by tbe direction to open the court for 10 days, at a convenient place in the circuit; a direction, of course, merely intended to further the convenience of applicants. If, however, the construction of this statute, as above expressed, is erroneous, is it, even tben, true that the supervisors must be denied because of the registration enactments cited? It will be, of course, conceded on all hands that in general the valid laws of the state determine the qualifications of the voter whetherat a local election or for presidential electors or representatives in congress; provided, always, that the state laws do not prescribe qualifications which are inhibited by the federal constitution and the l'tatutes made in pursuance thereof. MinOr v. Happersett, 21 Wall. 163. It is important to inquire, in this connection, what are the qualifications of voters, as defined by the constitution of the state? The constitution of 1877, art. 2, § 1, provides: "Every male citizen of the United States, (except as hereinafter provided,) 21 years of age, who shall have resided in this state one year next preceding the election, and shall have resided six months in the county in which he offers to vote, and shall bave paid all taxes which may hereafter be required of him, and which he may have had an opportunity of paying, agreeably to law, except for the year of the election, shall be deemed an elector." The exceptions referred to in this clause enumerate soldiers and sailors of the United States, residing temporarily in the state on duty, and persons convicted of treason against the state, embezzlement of public money, malfeasance in office, bribery or larceny, or any crime involving moral turpitude, punishable by the laws of the state with imprisonment in the penitentiary, unless such person shall have been pardoned, and idiots and insane persons. The provisions of the constitution of Georgia define the qualifications ofvoters at elections for presidential electors and for representatives in congress. It is important next to consider tbe provisions of the state constitu" tion with relation to the registration of voters. Article 2, § 2, of the same constitution provides that "the general assembly may provide from time to time for the registration of all electors." It follows, then, that it is within the power of the general assembly of Georgia to l'require" (to use the word of section 2011 of the Revised Statutes) a registration of voters'for an election for representative in the congress of the United States or for presidential electors. This registration would be, of course, operative upon all the voters in the state at such elections. . This is not only the right of the state, but it is expressly recognized by the fed· erallaw. The grave matter for consideration is, has the state ofGeorgia required a registration of all voters at elections for presidential electors and representatives in congress? Are the local registration enactments prescribed for the various counties of the 'state, which are practically as varying as they are numerous, such a registration .law as will relate to such elections? Are such registration laws for particular counties, and v.52F.no.3-17
258
F$DERAL
·. vol.
52.
differing among themselvea inai multituqe ofmatlilrial features, in consonance with of:Georgi,ij; and the' constitution and laws of I ' , Article 1, § 4,'Of the Georgia constit1;ltion of 1&77, provides: "Laws of a general ha,ve the state,and no special law ,shall. be enacted in"anycas for which provision has l been made by an existing general<law;" Now,Jtpeexisting general law at,that time empowered' "an.y qUllll6ed voter fqr members oLthe general assembly to "iote fQr anycllndidate, OI:'!1pon any question which is submitted to wIthe iD;ItQy county in 11).e state, and for, any candidate orqnestion which is ,8u,bmitted to aU the voters of any district or ,cil'<Juit, inany,wuntyofthe circuit prdistrict in which is etnbracedi the county ,oUhe, voter's residenoe." ,Cqde, § 1278. ;IJ which, was: enflCted under the ,c()nstit'!1Uon of 1868, then of foree, is applied to does i.t notfQllow that the legislature is inhibited., by article 11 § 4"above quoted, from en$.cting registration laws {oronecp1;lnty in a .Qopgressional district differing from the registration llj.ws in,theothercountiesofthesame district? ,.Does it not f1;lrtherinhibit the legislaturefr()'ij) enacting ,registration laws, to affect a general election Jike ,that for, electors or representatives in· congress, for particular, countiesin,il congl'essionaldistrict,when it fails or refuses t9' enact a uniform law,fC)ri,the same territory ; anel; moreover, does it not inhibit the enactmen,tof any registration law affecting the qualification of voters at the general,,¢lections, uglessthelawis of uniform operation throughout the "! ,The provision of the constitution that "the genelaI assembly mny pl'O\!ide from time for the registration of all electors" does not affQrd,any foundation. for a ,statute which. denies to the voter at R!generalelection, in. one county. the privileges and, immunities which a vowrat the same election in another COl,lOty enjoys. There is nothing in the clause whichauthQrizes the enactment of registration laws, with different requirements for different divisions of the to affect voters at a general election, in which the people, of the whole state are equally interested. Ofcourse, WQu!d have no appUcation to a municipal ,election. In the case of McMahon v. Mayor, etc" 66 Ga. 217, the supreme court of the state, while holding thahn Qrdinance of the city of Savannah prescribing registration of votera inrnunicipal elections for 'tbatcity was not contrary to the cOlU3titutibn, ,used the following language: "We <>annot see bow the l'egistration acts of the city may not be consistent with the power granted the legislature; to pass a general law on ethe SUbject of,registration,as contained in the constitution." It will be,observed that the court was construing a munioipal registration act, and tOe this its language Was· of course restricted; but the sentence quoted may also be regard ed. as, a judicial eleclaration that the power granted the legislatur;e by the constitution:to pass a, registration law for all v:oters imported a general law.:; The, words "registration law for all voters" make thisconclusi()l}; irresistible. It will 'ltequire but a cursory examination of: the registration enactmentsmade by. the gen.eral assembly of Georgia, since the adoption of
IN BE' APPOINTMENT OF SUPEBVISORS.
259
the constitution of '1877, for various counties of the state, to perceive how totally wanting in unifornlity they are, and how ,irregular and unfair would be their application to an election in which all the people were equally interested. The act of December 27, 1890,for Pierce county, IllAkes the tax receiver the registrar, and requires him to close his registra.tion on August 5th of each year. He must reqUire the voters seeking registration to make oath as to,the payment of theiHaxes, etc. The 'act expresslyprovides that no person can vote in any election for governor, members of the general as· sembly, or members of congress or presidential electors, who has notrego. istered. It will be observed that, under the construction placed by the objectors on section 2011, in order to have supervisors in Pierce county, the United States court must be opened 10 days before the 5th of August. The acts of December 27, 1890, and August 31, 1891, for Appling county, make the tax receiver the registrar, and require that he shall register the voters while making his regular rounds as tax receiver, from April 1st to July 1st of each year. Appling and Pierce are in the same federal judicial district,and the objections filed, if applicable at aU,will open the court for election purposes 10 days before the 1st of April, and as, by the succeeding section, the court· must remain open until the eleetion in November. The act of September 1, 1891, makes the justices of the peace registrars for Chattooga county. The registration books' must be kept open from the 1st Monday in July until three days previous to the election. No person whose name is absent from this list will be permitted to vote. There is no requirement in this act for the oath as to the payment of taxes,and, if the justice of the peace is of the opinion (upon what evidence the statute is not specific) that the person is a qualified voter, he can register him, even though he be not present. The registration act of Floyd county is even more complicated. n prescribes different regulations for different districts in the same county. It allows no one to vote who is not on the registration list. It provides that where a person has been registered, another may make affidavit charging the registry to have been improper, have a copy left at the usual place of abode of the person whose registration is attacked, and, even though that person be absent from home, unless he appear and answer the or some one appears for him, he is stricken from the registration list. The act of August 11, 1891, for Baldwin county, makes the tax collector registrar. The registration books must be opened on the same day when the books for the collection of state and county taxes are opened, and closed on the day when they are closed, and the citizen must make oath that he has paid his taxes. No person is permitted to vote whose name is not on the registry. Tbe act of November 7, 1889, for Wilkinson county, makes the justices of the peace registrars. All voters in the county are requi'red to be registered under the act. Registration is to be made only every other year,
260,
FEDERAL REPORTER,
vol. 5 Z.
in 1890. 1'he registration books are to be open during the ending fifteen days before the election for members of the general, assembly. 01) five days' notice, left at the place of abode of any person who has registered, the commissioners of roads and revenues, who, it will be observed, are not the registrars, may strike such person's name from the registry list if he fails, to appear and make satisfactory answer. Only voters who are qualified at the time of the registry, under the constitution and laws of Georgia. can be registered. No provision is made for allowing the citizen make oath as to his qualifications, but he is,r<,>,quired by the act to produce receipts or other satisfactory proof chargeable against him. that he has had an of the payment of all opport,unityof paying. No provision is made for persons arriving at the voting age after the closing of the books for registry and before the election, or for persons residing in the county for six months, but who have removed into the county from other sections of the state, after the registration books are closed. And yet the act provides that no person not registered on the list, for the county shall vote. Penalties are prescribed for any person registering unlawfully, but the act imposes no peQalty for, a person voting, or attempting to vote, who has not registered, and yet in other counties this is punishable by indictment. act for Warren county provides that any person who The has lived in the county for six months, and who has moved into the countysipce the closing registration, and who is otherwise qualified,may register up 1<) tqe day of the election. 27, 1890, for Bibb county, provides for the regThe act of istration of voters up to within 15 days, before the election, who were pro\1identililly, hinuered ,from registering, who have since moved into the c@unty, or reaqhed tbeir majority. This act has been" declared unconstitutional, on othergrot!pds,bya superior court of the state. It is, perhaps, unnece$lllryW call fllrther ,attention to the varying and The illustrations ipconsistent provisions will be 'sufficieut to show that the registration is not only notiUniform, but that it has the! most il'lfegular, and el'alJyunfair resultsupotHhe exercise of the elective franchise in the differ,qnt porulous of the state. It maybe added, however, that in some (jounties, It miuor who will attain bis maJority by the time of the electionis required to register while he is a minor to eutitle him to vote at electioI;l. In other counties there are.,no such requirements, and he can vote without registering, and in still other counties his case is not provided for at all. The same diversity of regulation is found in various counties in regard to the case of a citizen who has moved into a county after the registration, but who is otherwise entitled tovotej and it will .often happen that there iwill be two contiguous counties in the same cong;ressional district, and in one the citizens will have the privilege of registering up to the day before the election, while in the other, voters possessir,g all the qualifica,tions required by the constitution,are denied the right of voting by a registration which closed from six months to a year before the electioI;l. This wide-spread inequality isintensifiedin its gen-
261
eraI effect because in a multitude of counties in the state there are no registration laws whatever. The penalties of the various acts are as various as the methods and the requirements forregistration. It will often happen that persons in adjoining counties, voting, or attempting to vote, for the same congressman, will be punished differently for the same act; or the one will be punished and the other will be guiltless of any violation of law. The inequality and illegality of the conditions thus enumerated are obvious. It is announced by eminent authority that, while registration laws are constitutional, their requirements must be reasonable and uniform, and equal facilities must be afforded to all the citizens of the state to comply with their requirements; otherwise, they are void. Cooley, Const. Lim. p. 601. This deClaration is especially pertinent where the organic law of the state requires, as we have seen to be the case in Georgia, the enactment of uniform and not special legislation, and where the registration clause of the constitution provides, not for the registration of a portion of those otherwise qualified to vote, but for the registration of "all electors." For the reasons stated, the court is of the opinion that, as constituting an abstacle to the appointment of supervisors to supervise a general election, the registration enactments of the general assembly of Georgia are inoperative and void, because in conflict with the constitution of the state. But, if this were not true, it would be none the less our duty to disregard them. They are plainly in conflict with section 2005 of the Revised Statutes, which provides: .. When, under the authority of the constitution or In ws of any state, any act is required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are charged with the duty of furnishing to citizens an opportunity to perform such prerequisites, or to become qualified to vote. every such person and officer shall gi ve to all citizens of the United States the same and equal opportunity to perform such prerequisite and to become qualified to vote."
Now, it is not enough that all the citizens of the same county shall have an equal opportunity, but all the electors of the state, voting, or desiring to vote, at the same general election, must have the equal opportunity to perform the prerequisites, and to become qualified to vote. And it is a necessary implication of the language of this statute of the United States that: the prerequisites for voting at the same general election must be equal to each elector. Indeed, it is true, if a state of the American Union prescribes for a portion of its citizens, otherwise entitled to vote, prerequisites for voting from which other citizens are relieved, to that extent the state ceases to maintain a republican form of government, and enactments with such effect are contrary to the constitution of the common country. It will be easy to understand how, with such a system, or want of system, of registration laws, as hereinbefore described, the most injurious and unfair political results might be attained. If a congressional district be "gerrymandered" with unequal registration laws, according to the political complexion of certain localities, the fundamental laws of the United States, guarantying equal political
262
i,FBDERAL 'BEPORTER,'
vol. 52;0
rights, could bti set 'atriaught:The'power: of congress over mitioril11 electioDs is no longer in 'question. ' This beings national election of 'general <:haracterj it is clearly "Hthin the scope of the national laws. "rThe supreme court of the United States has held that congress can by)awprotectthe act of voting fOT' members of congress, and the perseJnsvotingatsuch election from violence or intimidation, and the election itself from fraud and corruption. Ex pmte Yarbrough, nou. S. 651,4 Sup. Ct. Ex parte Siabold, 100 U. S. 371. In the latter case, the court declares "the exercise of such power can collision of regulations or jurisdiotion, because the aUproperly cause thority ofoongressover the subject is paramount, and any regulations it may make necessarily supersede inconsistent regulations of the state." It follows, therefore;ithat since the federal law requires uniformity in the prerequisites of the ' l:ight to vote as affecting the citizen, otherwise entitled to vote, at the national eleotion, and further requires that each citizen shall have an equal opportunity to do the act made a prerequisite to the right of voting, varying and inconsistent registration enactments making different prerequisites,and denying equal opportunities to perform them, are contrary to the federal statute, and nugatory, The power of the state ofGeorgia toena,ct a general and uniform registration law is not questioned. The power is undoubted, and its exercise might well lead to· the most salutary results, to the fairness and regularity ofelections. To conform, however, both to the state constitution and the national laws, it must have a uniform effect upon all electors, and we hold that such a registration law has not yet been enacted. For the reasons above· enumerated, the court feels obliged to disregard the objections presented by the representatives of the Young Men's and will proceed with the performance ofthe duties assigned, in accordance with the statutes of the United States.
LEMON 'V. PULLMAN PALACE CAR (Circuit Court, S. D. Mi88isB1.ppi.
Co.
May 6,
SL1!lBPING CAR COMfANY-NoT COMMON CARRIlllR.
A sleeping car company Is not a common carrier. Its cars are under the control of the railroad company, except as to furnishing lodging to those who may pay for it; and the agents of the railrolld company are entitled to determine who shall occupy the sleeping cars. as part of the train.
S.
SAME-LIABILITY FOR REFUSING BERTH-AGENTS.
B.
SAME-PUNITIVE DAMAGES.
Conceding, however. that he acted as the agent of the sleeping car company, the latter would not be liable for punitive damages. unless the passenger was treated insultingly or with malice. .