# Commonwealth ex rel. McCormick v. Reeder

> Supreme Court of Pennsylvania · October 17, 1895 · 171 Pa. 505

URL: https://www.frixlaw.com/law-library/cases/6243290

## Case

- **Full name:** Commonwealth ex rel., Henry C. McCormick, Attorney General v. Frank Reeder
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 17, 1895
- **Citations:** 171 Pa. 505; 33 A. 67; 1895 Pa. LEXIS 1336
- **Precedential status:** Published
- **Opinion:** Dissent by Williams
- **Judges:** Dean, Fell, Fully, Green, McCollum, Mitchell, Steiuiett, Sterrett, Williams
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*519 Dissenting Opinion by
Williams, J.:
I cannot concur in this judgment. Some of the reasons that impel mo to dissent from it I will state as briefly as I am able. The government of Pennsylvania is in the language of the Declaration of Rights a “ Free Government,” and rests on the authority of the people. Their authority is exercised and their will expressed by their votes. To protect themselves in the unrestricted exercise of their right to vote at all elections and for all public officers they have declared hi the fifth section-of the Declaration of Rights that “ no power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.” In order to define what they meant by “ the right of suffrage ” and to regulate the manner of its exercise, they devoted the seventeen sections of the eighth article of the constitution to this subject. In the first of these sections they declare that “ every male citizen twenty-one years of age, possessing the following qualifications shall be entitled to vote at all elections.” The qualifications that follow relate to citizenship, to residence, and the payment of a tax. These qualifications cannot be changed, increased or diminished by the legislature. This was distinctly asserted by this court in Page et al. v. Allen et al., 58 Pa. 338 , in these words : “ No constitutional qualification of a voter can be abridged, added to, or altered by legislation.” In McCafferty v. Guyer, 59 Pa. 109 , a statute passed to disfranchise a deserter from the armies of the Union was held unconstitutional because it added a disqualification not found in the constitution; and the rule of Page v. Allen, supra, was recognized and restated in these words: “ A right conferred by the constitution is beyond the reach of legislative interference.” If there were no other provisions upon this subject it would be too clear for serious contention that the people had reserved to themselves the unrestricted right of suffrage, and that the legislature was powerless to deny to any qualified voter the privilege of voting at all elections and for all elective officers, if he desired to exercise it. But some experiments had been made by the legislature with what is called limited voting prior to the calling of the constitutional convention of 1873. These had been made without constitutional authority, to secure minority representation on boards of officers where it was thought the presence of a representative of the minority politi *520 cal party might tend, to a more impartial discharge of the duties devolving on the board, or to increased efficiency. It was thought best to recognize the principle underlying such legislation and to indicate in what cases and to what extent this power to limit a citizen in the exercise of his right of suffrage should thereafter be exercised. These cases are where two judges of the Supreme Court are to be elected at the same time, art. 5, sec. 16; in the election of inspectors of election, art. 8, sec. 14; in the election of county commissioners and county auditors, art. 14, sec. 7, and the election of magistrates in Philadelphia.
These are the only exceptions to the unlimited right to vote at all elections and for all elective officers that the framers of the constitution saw fit, when their attention was fixed upon the subject, to allow. Expressio unius exclusio alterius. It has been suggested that this maxim is not applicable in the interpretation of the constitution, but this court held exactly the opposite in Page v. Allen and Robb v. Barlow, 58 Pa. 338 , and the following language was used: “ The expression of one thing in the constitution is the exclusion of things not expressed.” It was further said in the same case “ The inhibitions of the constitution as to legislation are to be regarded as well when ■ they arise by implication as by expression.” We are bound by our own precedents and by every rule of interpretation to say in this case that an enumeration of the instances in which the exercise of the right of suffrage shall be limited is equivalent to a distinct denial of the power to limit it in all cases not in the enumeration. But this judgment is not only in violation of the constitution, but it recognizes a power in the legislature to disregard the constitutional safeguards of the right to vote that is far reaching and that might be used, to subvert the will of the majority. In many counties of the state two or more, and in the counties of Philadelphia and Allegheny many members of the legislature are elected upon the same general ticket. The right of the voter might with equal propriety be limited to a certain number of these. If the legislature may deny to the voter the right to vote for one, why not for two, or three, or to vote for all but one ? There are counties in the commonwealth where the relative strength of the great political parties is as one to three. Suppose such a *521 county elects two representatives and each voter is restricted in his right to vote so that he can vote for but one. Then the majority numbering three fourths of all the voters secures the same representation as the minority that numbers but one fourth of the voters. If this judgment is right and the legislature may without constitutional authority deny to every citizen of the commonwealth the right to vote for one of the judges of the superior court, why may not the same thing be done as to associate judges in the counties where those officers still exist? Why not in all judicial districts where two or more judges are elected in the same district ? Why not extend the same limitation to school directors, to members of select and common councils in cities, to councilmen in boroughs, to congressmen at large of whom we have two, and even to presidential electors ?
But it is said that jury commissioners are elected on the plan of limited voting, and if this judgment should be affirmed the law under which they are elected would fall. I can imagine a greater public calamity than that would be. Suppose it should be held, as but for this judgment I cannot doubt it would be held, that the law under which jury commissioners are elected is unconstitutional, then the duty of selecting and drawing jurors would fall back upon the county commissioners if no other method was provided by law. No serious inconvenience could arise. But meantime, and until the question is regularly raised on quo warranto and decided, it could not be raised on a challenge to the array. The officers will continue to serve until the law is repealed or held to be invalid. But suppose it was inevitable that an affirmance of this judgment would empty every jury wheel in the state. It is better, a thousand times better, that this should happen than that the sacred “ right of suffrage ” so carefully intrenched by the people in their fundamental law should become the football of party majorities to be limited or restricted as the exigencies of political warfare might seem to require. I would affirm this judgment and uphold the constitutional declaration that “every male citizen twenty-one years of age .... shall be entitled to vote at all elections ” and, in the language of the Declaration of Rights, I would hold that “ no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage ” at any election or for any elective officer, except in the instances and to the extent that the constitution has plainly authorized.
Steiuiett, C. J., fully concurs in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6243290. Public record. Not legal advice.