The right to vote for members of Congress is not derived merely
from the constitution and laws of the state in which they are
chosen, but has its foundation in the Constitution and laws of the
United States.
The circuit court of the United States has jurisdiction of an
action brought against election officers of a state to recover
damages, alleged to exceed the sum of $2,000, for refusing the
plaintiff's vote for a member of Congress.
In an action against election officers of the State of South
Carolina for refusing the plaintiff's vote at an election, the
declaration must allege that the plaintiff was a registered voter,
as is required by the constitution and laws of the state.
This was an action brought March 11, 1895, in the Circuit Court
of the United States for the District of South Carolina, by a
resident of the City of Charleston in that state, against the board
of managers of a general election at a ward and precinct in that
city, to recover damages in the sum of $2,500 for wrongfully and
willfully rejecting his vote for a member of the House of
Representatives of the United States for the State of South
Carolina on November 6, 1894. The allegations of the complaint were
as follows:
"I. That the plaintiff is and was on the 6th day of November,
1894, a resident of the City and County of Charleston, in the State
of South Carolina, and that he had been a resident of said state
for a period of more than twelve months next preceding said 6th day
of November, 1894, and a resident of said city and county for more
than sixty days next preceding said day, and that, under the
Constitution and laws of the said State of South Carolina and the
Constitution and laws of the United States, the said plaintiff is,
and was at the time aforesaid, twenty-one years of age, and is and
was in every other respect a duly qualified elector of said state,
and is and was on the said 6th day
Page 179 U. S. 59
of November, 1894, entitled to vote for a member of the House of
Representatives of the United States from said State of South
Carolina."
"II. That the defendants were on the day and year aforesaid the
board of managers of the federal election at the first election
precinct in the sixth ward of said City of Charleston, in said
county and state; that, as the plaintiff has been informed and
believes, the said defendants were duly appointed and qualified as
such managers, and that they were present at the polling place in
the said election precinct on the said 6th day of November, 1894,
and during all the time the polls were opened on said day were
there, acting as such board of managers of the federal
election."
"III. That the proper election precinct at which the said
plaintiff was entitled to vote is the said first precinct in the
sixth ward of the city and County of Charleston, in the state
aforesaid, and that, on the said 6th day of November, 1894, and
while the polls were open for voting purposes, the said plaintiff
presented himself at the polling place in said election precinct,
and then and there offered to vote and cast his ballot for one of
the candidates for the office of member of the House of
Representatives of the United States for the State of South
Carolina in the Fifty-fourth Congress, and the plaintiff further
avers that he then and there had ready the proof of his
qualifications as such federal elector as aforesaid."
"IV. That the said defendants unlawfully, willfully, and
injuriously refused to permit the said plaintiff to vote at said
precinct and at said federal election which was there held
according to law, on said 6th day of November, 1894, for one of the
candidates for member of said House of Representatives of the
United States for the state aforesaid, and wrongfully and
willfully, and without any lawful cause or excuse, rejected the
plaintiff's said vote, to his damage two thousand and five hundred
dollars."
"Wherefore the plaintiff demands judgment against the defendants
for the said sum of two thousand and five hundred dollars, and for
the costs of this action."
The defendants demurred to the complaint upon the following
grounds:
Page 179 U. S. 60
First. That the court had no jurisdiction of the action, because
it did not affirmatively appear on the face of the complaint that a
federal question was involved and because it appeared on the face
of the complaint that a verdict for $2,000 would be so excessive
that the court would be required to set it aside.
Second. That the complaint did not state facts sufficient to
constitute a cause of action, because, by section 2008 of the
Revised Statutes of the United States, an action must be brought
for a penalty, and not for damages, and because the complaint did
not state facts sufficient to constitute a cause of action, either
under that statute or at common law.
The court, without considering the other grounds, sustained the
demurrer and dismissed the complaint because it did not state facts
sufficient to constitute a cause of action in that it failed to
state that the plaintiff was a duly registered voter of the State
of South Carolina. The plaintiff sued out a writ of error from this
Court.
The material parts of the Constitution and laws of South
Carolina, referred to in argument, are stated in the margin.
*
Page 179 U. S. 61
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
This case involves the construction and application of the
Constitution of the United States, and is therefore rightly brought
directly from the circuit court of the United States
Page 179 U. S. 62
to this Court under the Act of March 3, 1891, c. 517, § 5, cl.
4, 26 Stat. 828.
The right to vote for members of the Congress of the United
States is not derived merely from the Constitution and laws of the
state in which they are chosen, but has its foundation in the
Constitution of the United States.
Page 179 U. S. 63
This is clearly and amply set forth in
Ex Parte
Yarbrough, 110 U. S. 651, in
which this Court, speaking by Mr. Justice Miller, upheld a
conviction in a circuit court of the United States under sections
5508 and 5520 of the Revised Statutes for a conspiracy to
intimidate a citizen of the United States in the exercise of his
right to vote for a member of Congress, and answered the
proposition
"that the right to vote for a member of Congress is not
dependent upon the Constitution or laws of the United States, but
is governed by the law of each state respectively,"
as follows:
"But it is not correct to say that the right to vote for a
member of Congress does not depend on the Constitution of the
United States. The office, if it be properly called an office, is
created by that Constitution, and by that alone. It also declares
how it shall be filled, namely, by election. Its language is:"
"The House of Representatives shall be composed of members
chosen every second year by the people of the several states, and
the electors in each state shall have the qualifications requisite
for electors of the most numerous branch of the state
legislature."
"Art. 1, sec. 2. The states, in prescribing the qualifications
of voters for the most numerous branch of their own legislatures,
do not do this with reference to the election for members of
Congress. Nor can they prescribe the qualification for voters for
those
eo nomine. They define who are to vote for the
popular branch of their own legislature, and
Page 179 U. S. 64
the Constitution of the United States says the same persons
shall vote for members of Congress in that state. It adopts the
qualification thus furnished as the qualification of its own
electors for members of Congress. It is not true, therefore, that
electors for members of Congress own their right to vote to the
state law in any sense which makes the exercise of the right to
depend exclusively on the law of the state."
110 U.S.
110 U. S.
663.
The Court then, referring to the statement of Chief Justice
Waite in
Minor v.
Happersett, 21 Wall. 162,
88 U. S. 178, that
"the Constitution of the United States does not confer the right of
suffrage upon anyone," explained that statement as follows:
"But the Court was combating the argument that this right was
conferred on all citizens, and therefore upon women as well as men.
In opposition to that idea, it was said the Constitution adopts as
the qualification of voters for members of Congress that which
prevails in the state where the voting is to be done; therefore,
said the opinion, the right is not definitely conferred on any
person or class of persons by the Constitution alone, because you
have to look to the law of the state for the description of the
class. But the Court did not intend to say that, when the class or
the person is thus ascertained, his right to vote for a member of
Congress was not fundamentally based upon the Constitution, which
created the office of member of Congress, and declared it should be
elective, and pointed to the means of ascertaining who should be
electors."
110 U.S.
110 U. S.
664.
The circuit court of the United States has jurisdiction,
concurrent with the courts of the state, of any action under the
Constitution, laws, or treaties of the United States in which the
matter in dispute exceeds the sum or value of $2,000. Act of August
13, 1888, c. 866, 25 Stat. 433.
This action is brought against election officers to recover
damages for their rejection of the plaintiff's vote for a member of
the House of Representatives of the United States. The complaint,
by alleging that the plaintiff was at the time, under the
Constitution and laws of the State of South Carolina and the
Constitution and laws of the United States, a duly qualified
Page 179 U. S. 65
elector of the state, shows that the action is brought under the
Constitution and laws of the United States.
The damages are laid at the sum of $2,500. What amount of
damages the plaintiff shall recover in such an action is peculiarly
appropriate for the determination of a jury, and no opinion of the
Court upon that subject can justify it in holding that the amount
in controversy was insufficient to support the jurisdiction of the
circuit court.
Barry v. Edmunds, 116 U.
S. 550;
Scott v. Donald, 165 U. S.
58,
165 U. S. 89;
Vance v. W. A. Vandercook Co., 170 U.
S. 468,
170 U. S. 472;
North American Co. v. Morrison, 178 U.
S. 262,
178 U. S.
267.
The circuit court therefore clearly had jurisdiction of this
action, and we are brought to the consideration of the other
objections presented by the demurrer to the complaint.
The objection that the only remedy in that court was by suit for
a penalty under section 2008 of the Revised Statutes is answered by
the repeal of that section, before this action was brought, by the
act of Congress of February 8, 1894, c. 25, 28 Stat. 36.
But the objection that the complaint failed to state that the
plaintiff was a duly registered voter of the State of South
Carolina (which was the ground of the judgment below in favor of
the defendants) is a more serious one.
By the Constitution of South Carolina, every male citizen of the
age of twenty-one years and upwards, who has resided in the state
for one year, and in the county where he offers to vote for sixty
days next preceding any election and is not disqualified by the
Constitution of the United States, nor a lunatic or a prisoner, nor
been convicted of an infamous crime or of dueling, is entitled to
vote for all officers elected by the people. Art. 1, § 31; art. 8,
§§ 2, 8. That Constitution, in art. 8, § 3, also makes it the duty
of the legislature to provide from time to time for the
registration of all electors.
The Revised Statutes of South Carolina of 1893 provide, in §
131, that every man not laboring under the disabilities named in
the constitution of the state (repeating all the qualifications and
the disabilities mentioned in that Constitution) shall be entitled
to vote, and further provide, in § 132, that all electors of
Page 179 U. S. 66
the state shall be registered, and that no person shall be
allowed to vote at any election unless theretofore registered as
required by those statutes or by previous laws.
The constitution and the laws of the state thus require that, in
order to entitle, anyone to have his vote received at any election,
he must not only have the requisite qualifications of an elector,
but he must have been registered. By elementary rules of pleading,
both these essential requisites must be distinctly alleged by the
plaintiff in any action against the managers of an election for
refusing his vote.
Murphy v. Ramsey, 114 U. S.
15,
114 U. S. 37;
Blanchard v. Stearns, 5 Met. 298, 302.
The complaint in this case alleges that the plaintiff was a duly
qualified elector, but it contains no allegation that he was ever
registered as such. Because of this omission, the complaint does
not state facts sufficient to constitute a cause of action.
It was argued in behalf of the plaintiff that the registration
act of South Carolina was unconstitutional because it allowed for
registration only one day in each month between the day of a
general election in November and the first day of July before the
next general election; required the registration books to be closed
from such first day of July for four months, until the ensuing
election day, and thus in effect required each voter to reside in
the county for one hundred and twenty days (whereas the
Constitution required only sixty days) before the election, and
otherwise unreasonably impeded the exercise of the constitutional
right of voting; that the only exception allowed was in the case of
voters coming of age during those four months, and there was no
exception in the case of electors who, by reason of sickness or
absence or other good and sufficient cause, did not or could not
have registered before the first day of July.
In the case in the Supreme Court of South Carolina of
Butler
v. Ellerbe, 44 S.C. 256, cited at the bar, the Chief Justice
expressed his opinion that the registration act of the state was
unconstitutional, but the majority of the judges declined to
express any opinion upon that question, because they thought it
unnecessary for the decision. Nor should this Court undertake to
decide it in the present case.
Passing by the difficulty of subjecting election officers to
an
Page 179 U. S. 67
action for damages for refusing a vote which the statute under
which they are appointed forbids them to receive it is by no means
clear, taking into consideration all the constitutional and
statutory provisions upon the subject, that the construction
contended for is the true construction of the statute.
But, even upon that construction, the plaintiff does not show
that he is in a position to impugn the constitutionality of the
statute. It is only on the day when his vote was refused that he
alleges that he had resided in the state for a year and in the
county for sixty days and was of age and otherwise a qualified
elector. He does not allege when he first became qualified. So far
as appears, he may have become of age and otherwise qualified but a
few days before the election day on which he tendered his vote, in
which case he would confessedly, by the specific provision of
section 141, have been entitled to apply for registration. Yet he
does not allege that he ever was registered or made any application
to be registered.
The provisions of the statutes of 1893 requiring registered
voters to obtain certificates from the supervisors, the provisions
for registration in earlier statutes, and the provisions of the
statute of December 24, 1894, for calling a constitutional
convention, enacted since the date of the election here in
question, were largely commented on, and their validity impugned,
in the argument for the plaintiff in error. But the validity of
none of those provisions is involved in the decision of this
case.
Judgment affirmed.
* In the Constitution of 1868, the first article, entitled
"Declaration of Rights," contains the following provisions:
"SEC. 31. All elections shall be free and open, and every
inhabitant of this commonwealth possessing the qualifications
provided for in this Constitution shall have an equal right to
elect officers and be elected to fill public office."
"SEC. 33. The right of suffrage shall be protected by laws
regulating elections, and prohibiting, under adequate penalties,
all undue influences from power, bribery, tumult, or improper
conduct."
The eighth article of the same Constitution, entitled "Rights of
Suffrage," contains the following provisions:
"SEC. 2. Every male citizen of the United States, of the age of
twenty-one years and upwards, not laboring under the disabilities
named in this constitution, without distinction of race, color, or
former condition, who shall be a resident of this state at the time
of the adoption of this constitution or who shall thereafter reside
in this state one year, and in the county in which he offers to
vote sixty days, next preceding any election, shall be entitled to
vote for all officers that are now or hereafter may be elected by
the people, and upon all questions submitted to the electors at any
elections: Provided, that no person shall be allowed to vote or
hold office who is now or hereafter may be disqualified therefor by
the Constitution of the United States until such disqualification
shall be removed by the Congress of the United States: Provided
further, that no person while kept in any almshouse or asylum, or
of unsound mind, or confined in any public prison, shall be allowed
to vote or hold office."
"SEC. 3. It shall be the duty of the general assembly to provide
from time to time for the registration of all electors."
"SEC. 7. Every person entitled to vote at any election shall be
eligible to any office which now is, or hereafter shall be,
elective by the people in the county where he shall have resided
sixty days previous to such election, except as otherwise provided
in this constitution or the Constitution and laws of the United
States."
"SEC. 8. The general assembly shall never pass any law that will
deprive any of the citizens of this State of the right of suffrage,
except for treason, murder, robbery, or dueling, whereof the person
shall have been duly tried and convicted."
This section was amended in 1882 by substituting for the word
"robbery" the words "burglary, larceny, perjury, forgery, or any
other infamous crime."
The Revised Statutes of South Carolina of 1893 contain the
following provisions:
"SEC. 162. The general elections for federal, state, and county
officers in this state shall be held on the first Tuesday following
the first Monday in November in every second year, reckoning from
the year one thousand eight hundred and seventy."
"SEC. 131. Every male citizen of the United States, of the age
of twenty-one years and upwards, not laboring under the
disabilities named in the Constitution, without distinction of
race, color, or former condition, who shall have been a resident of
the state for one year, and in the county in which he offers to
vote for sixty days next preceding any general election, shall be
entitled to vote: Provided, that no person, while kept in any
almshouse or asylum, or of unsound mind, or confined in any public
prison, or who shall have been convicted of treason, murder,
burglary, larceny, perjury, forgery, or any other infamous crime,
or dueling, shall be allowed to vote."
"SEC. 132. All electors of the state shall be registered, and no
person shall be allowed to vote at any election hereafter to be
held unless he shall have been heretofore registered in conformity
with the requirements of chapter 7 of the General Statutes of 1882,
and acts amendatory thereof, or shall be registered as herein
required."
Sections 133-136 provide for the appointment of a supervisor and
two assistant supervisors of registration in each county, and
establish registration precincts.
"SEC. 137. After every general election, the registration books
shall be opened, for registration of such persons as shall
thereafter become entitled to register, on the first Monday in each
month until the first day of July preceding a general election,
when the same shall be closed until such general election shall
have taken place."
Section 138 requires the books of registration to be deposited
and safely kept in the office of a certain clerk or registrar.
"SEC. 139. The supervisor shall determine as to the legal
qualifications of all applicants for registration by summary
process, requiring oath, evidence, or both, if he deem proper,
subject to revision by the assistant supervisors and himself in all
cases where he has refused to register an applicant. From their
decision any applicant who is rejected shall have the right to a
review thereof by the circuit court, provided he give notice in
writing to the supervisor of his application for such review, and
the grounds thereof, within five days from the date of his
rejection, and commence his proceedings within ten days from the
service of said notice."
"SEC. 140. Any person coming of age, and otherwise qualified as
an elector may appear before the supervisor on any day on which the
books are opened as aforesaid, and make oath (which the supervisor
is hereby authorized to administer) as to his name, age,
occupation, and place of residence, and if the supervisor find him
qualified, he shall enter his name upon the registration book of
the precinct in which he resides. Such person shall have the right
of appeal, as provided in the last section, if the supervisor shall
not find him qualified."
"SEC. 141. In case a person shall not be of age to qualify him
as an elector on the day of the closing of the books of
registration before any general election, but shall be of such age
as will qualify him as such elector before the said general
election, and shall appear before the supervisor of registration
and take oath thereto, the supervisor, if he shall find him
qualified, shall enter his name upon the registration book as
aforesaid."
Section 142 provides that
"each elector registered as aforesaid shall thereupon be
furnished by the supervisor with a certificate shall be signed by
the said supervisor, and no person shall be allowed to vote at any
other precinct than the one for which he is registered, nor unless
he produces and exhibits to the managers of election such
certificate,"
and the form of such certificate is prescribed.
By sections 146-149, an elector who changes his place of
residence must surrender his certificate of registration and take
out a new certificate, and by section 150, if an elector loses his
certificate, he may, upon application made at least thirty days
before the next general election, and upon complying with certain
stringent provisions as to proof of the loss, obtain a new
certificate.