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It is hoped that the good citizens of these counties will vote to the extent permitted them by law, looking to an early period for the remedies for all these grievances, and that we shall have no revolutionary outbreak or violence at the election, which would be fraught with incalculable evil, and attended with no possible good.
It will be observed that the apportionment has no effect whatever upon the vote for delegate for Congress or for county officers; in regard to both of which, the counties excluded from the apportionment for the territorial legislature have the same rights and influence, in proportion to their votes, as the people of any of the other counties of Kansas.
In relation to precincts, which I am asked to establish, the act of the territorial legislature of 1855 regulates that subject in the fourth and fifth sections. The power is there given to the county officers to establish the precincts and select the judges of election, but there is a liberal provision in the law to meet any contingency. The fourth and fifth sections of the act are in the following words:
"SEC. 4. Every county that now is, or that may hereafter be established, shall compose an election district, and all elections shall be held at the court-house of such county, where one has been erected. If there be no court-house, then it shall be the duty of the county commissioners to name a house in such county where the election shall be held; and if such commissioners fail to name such house twenty days before the election, it shall be the duty of the sheriff to name such house. In either of the last two cases, the sheriff shall give notice of the place of holding the election by written advertisements, set up in at least six public places in such county, or by advertisement in some newspaper published in such county, at least ten days before the day of the election: Provided, That the county commissioners may, from time to time, establish such additional election precincts as may seem to them necessary or proper: Provided, further, however, that in no case shall more than one precinct be established in any one municipal township.
"SEC. 5. The county commissioners shall appoint the judges of election, in each county or voting precinct, at least ten days before the election at which they are to act; and if, at the hour for the opening of the polls, such judges are not present, then the voters a sembled shall have power to elect others to fill the vacancy or vacancies thus occasioned. Said judges shall, before they enter on the discharge of their duties, take the following oath or affirmation, to be administered by one of their own body, by the sheriff, or by any officer authorized to administer oaths:
"I do swear (or affirm) that I will impartially discharge the duties of judge of the present election according to law and to the best of my ability."
As to the judges of election, then, there can be no difficulty under this law, the power being vested in the people at the several precincts, in case the county officers fail to perform their duty; and if there be no precincts, then the election can only be held at the seat of justice provided by law for each county. It has been suggested that this power is given to me under the convention law of the 19th of Feb
ruary, 1857, to establish precincts. It is true that very large and comprehensive powers are given to the governor of the Territory by that law, to which I shall have occasion hereafter to refer, and which seem to have escaped public attention; but those powers are especially confined to my action under that law, and confer no authority in that respect in regard to the October election. With me this is a matter of most sincere regret, inasmuch as it is now, and always has been, my most anxious desire to see a full and fair election held in October next, and to contribute to this result to the extent of all the authority devolved upon me by law. By the act of Congress, however, of the 30th of May, 1854, organizing this Territory, and which is still in full force, in that respect, on this subject, it is declared in the 33d section, that "the person having the greatest number of votes shall be declared by the governor to be duly elected, and a certificate thereof shall be given accordingly." As regards the territorial legislature, the certificate is to be given by the secretary of state, who is to count the votes in the presence of the governor; and in relation to the local officers, this duty, in case of contest, is devolved upon the courts.
In view of my duties in connexion with this law, my attention has been called to the qualification of voters under the law. But even here, the prior duty is devolved upon the judges of election; and I might not have felt called upon to give any opinion upon the subject, but for circumstances of a most grave and serious character, to which I shall now refer.
The Territory is threatened with a violent seizure of the polls at the October election, leading, necessarily, to a collision and civil war. This would be a most disastrous circumstance, requiring imperatively the employment of the troops under my control to avert scenes disgraceful alike to this Territory and to our country, and which every good citizen could not but deplore. If, then, under these circumstances, the expression of my opinions could prevent, as in May and June last, the occurrence of such a catastrophe, I regard it as a solemn duty to make that expression, rather than resort to the employment of force, to be followed by scenes of anarchy and bloodshed. The two questions presented for my consideration are
First. Can those who were qualified under the organic act to vote at the first election in this Territory vote also in October next, independent of any restrictions imposed by any act of the territorial legislature?
The 22d and 23d sections of the organic law relating to this subject are in the following words:
"SEC. 22. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the governor and legislative assembly. The legislative assembly shall consist of the council and house of representatives. The council shall consist of thirteen members, having the qualification of voters, as hereinafter prescribed, whose term of service shall continue two years. The house of representatives shall, at its first session, consist of twenty-six members, possessing the same qualifications as prescribed for members of the council, and whose term of service shall continue one year. The number of representatives may be increased by the legislative assembly,
from time to time, in proportion to the increase of qualified voters: Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the council and representatives, giving each section of the Territory representation in the ratio of its qualified voters, as nearly as may be. And the members of the council and house of representatives shall reside in and be inhabitants of the district or county or counties for which they may be elected, respectively. Previous to the election the governor shall cause a census, or enumeration of the inhabitants and qualified voters of the several counties and districts in the Territory, to be taken, by such persons, and in such mode, as the governor shall designate and appoint; and the person so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election, and the returns thereof, as the governor shall appoint and direct; and he shall at the same time declare the numbers of the council and house of representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said council districts, for members of the council, shall be declared by the governor to be duly elected to the council; and the persons having the highest number of legal votes for the house of representatives shall be declared by the governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the legislative assembly, the governor shall order a new election; and the persons thus elected to the legislative assembly shall meet at such place and on such day as the governor shall appoint; but thereafter, the time, place, and manner, of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts, to the council and house of representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the legislative assembly: Provided, That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days.
"SEC. 23. And be it further enacted, That every free white male inhabitant above the age of twenty-one years, who shall be an actual resident of said Territory, and shall possess the qualifications hereinafter described, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualification of voters, and of holding office at all subsequent elections, shall be such as shall be prescribed by the legislative assembly: Provided, that the right of suffrage, and of holding office, shall be exercised only by citizens of the United States, and those who have declared on oath their intention to become such, and shall have taken an oath to support the Constitution of the United States, and the provisions of this act: And provided, further, That no officer, soldier, seaman, or
marine, or other person in the army or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory, by reason of being on service therein."
It will be perceived that the act of Congress is clear and explicit on this subject. It prescribes the qualifications only of those who "shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters and of holding office at all subsequent elections shall be such as shall be prescribed by the legislative assembly." The provisos have no application whatever to the subject, inasmuch as they only prohibit the legislature from permitting persons to vote who are neither native nor naturalized citizens, nor have declared on oath their intention to become citizens, and certain officers, soldiers of the army, &c.
Now, then, it is clear, first, that as regards all elections but the first, the qualifications are not prescribed by the act of Congress; and, second, the qualifications with the restrictions before mentioned, for all subsequent elections, are to be designated exclusively by the territorial legislature.
It is certain, then, that the question now raised as regards the pretended right of persons to vote who possess the requisite qualifications under the act of Congress for voting at the first election, but are excluded by subsequent territorial legislature now in force, has no foundation whatever in law, and such votes would be wholly illegal. Under these circumstances, I trust that no one will attempt to vote who is excluded by the territorial law; and that if such illegal attempt is made, such a clear violation of the act of Congress, and of the laws of this Territory, will be arrested and prevented by the judges of election.
The second question is:
Will voters at the elections in October, who possess all the qualifications provided by the territorial act of the 20th of February, 1857, which is the last act on this subject, be also required to possess other and different qualifications contained in preceding territorial enact ments, or is the last law the sole rule of action on this subject? This last act is the general election law, providing for a new and entirely distinct apportionment of members for both branches of the territorial legislature, as also the qualifications of voters at that and all succeeding elections, and is entitled "An act to define and establish the council and representative districts for the second legislative assembly, and for other purposes." The first section designates, by name, the several counties of Kansas which are to constitute the several council districts; the second section designates, by name, the several counties of Kansas which are to constitute the respective representative districts; the third section apportions members among the several representative districts according to the census provided for in the convention law; the fourth section apportions, in the same manner, the members among the several council districts; the fifth and last section is in these words:
"SEC. 5. Every bona fide inhabitant of the Territory of Kansas, being a citizen of the United States, over the age of twenty-one years, who shall have resided six months in said Territory before the next general election for members of the council and house of representatives, and no other person whatever, shall be entitled to vote at any general election hereafter to be held in this Territory: Provided, however, That nothing in this act contained shall be considered to apply to, or affect in any manner the provisions of an act entitled 'An act to provide for taking the census, and election for delegates to a convention.'
"This act to take effect and be in force from and after its passage." The language of this section is clear and explicit. It is an act prescribing the qualifications, and all the qualifications, of voters at all future elections. The law is perfect and complete in itself, without any reference whatever to preceding enactments. The language is free from controversy. "Every bona fide inhabitant," &c., "shall be entitled to vote," &c. The words are imperative. It is the language of command from the proper authority, and no one has any right to interpolate restrictions contained in preceding enactments. It is a well settled principle of law, as well as of common sense, that when any subsequent statute proceeds to regulate an entire subject in general and comprehensive language, it is of full force and effect in and of itself, and no restriction or addition can be made to its provisions by reference to any preceding enactments. In such a case there can neither be addition nor subtraction, and the number of qualified voters can neither be augmented by adding to them those who were permitted to vote by preceding laws, nor be lessened by subtracting those who were restricted from the right of suffrage by previous enactments. The words "every citizen," &c., and "no other" shall vote, include all who are described in the act, and exclude all others. Besides, the right of suffrage is the most sacred known to the American people. It is the basis upon which repose all their institutions.
It is a right highly favored in our law; and in all such cases to deprive any one of this right the words must be clear and unambiguous. But in this case there is no ambiquity; and independent of the fact that this act, as regards elections and the qualifications of voters, is an act complete in itself, and prescribing all the provisions applicable to this subject, any interpretation by which a restriction as regards the right of voting, contained in a preceding law, should be superadded to those required in this act, would create a direct and positive repugnance to its clear and explicit language, and therefore would be most clearly repealed by virtue of that universal principle of jurisprudence, that when two statutes contain provisions which are repugnant, repellant, or contradictory, either by way of addition or subtraction, the last statute must prevail.
Now, let us see if there would not be direct repugnancy in this case under the construction contended for by those who assert that although the qualification of a territorial tax is not among the qualification of voters under the act of 1857, yet that it is a qualification under the