The opinion
Lockwood, Justice, concurring:
I concur in the opinion that the judgment below ought to be reversed, for the following reasons. It appears in the agreed case, that Spragins was sued in the Court below, as one of the judges of election, for the penalty of one hundred dollars, given by the 23d section of the Jlct regulating Elections,” passed the 10th January, 1829. That section provides, that, “ If any judge of the election, clerk, or other officer or person in anywise concerned in conducting the election, shall knowingly admit any person to vote, not qualified according to law, each and every person so offending, shall forfeit and pay to the county the sum of one hundred dollars,” &c. (1)
The agreed case admits that one Kyle voted at the general election in 1838, for Governor and other officers, and that Kyle was a foreigner, and had not been naturalized under the laws of Congress, but had resided in the county of Jo Daviess, where the vote was received, for more than six months immediately preceding the election. The case further admits that Spragins acted as a judge of the election, and knew that Kyle had not been naturalized, yet received his vote. It is also admitted that Spragins believed that Kyle was not a qualified voter, according to the Constitution and laws of this State, because he had not been naturalized.
In ordinary civil actions, where a defendant admits that he is guilty, such admission would justify the Court in giving judgment against him ; but this is a highly penal action, and if the defendant is guilty, in addition to a fine of one hundred dollars, he is, moreover, on conviction, rendered incapable of holding any office within this State, for the term of ten years thereafter.
The admission appears to have been made with a view to elicit from this Court, a construction of the Constitution and laws of this State, in relation to the right of aliens to vote. This renders it necessary to decide whether Spragins, in suffering Kyle to vote, without challenging him, has subjected himself to the penalty of one hundred dollars, and disfranchisement for ten years.
The 12th section of the act regulating elections, provides, that “When any person shall present himself to give his vote, and either of the judges shall suspect that such person does not possess the requisite qualifications of an elector, or if his vote shall be challenged by any elector who has previously given his vote at such election, the judges of the election shall tender to such person an oath or affirmation in the following form: ‘ I, A. B., do solemnly swear (or affirm, as the case may be) that I am a resident of the county of--, in the State of Illinois ; that I have resided in this State for the period of six months immediately preceding this election ; that I have, to the best of my knowledge and belief, attained to the age of twenty-one years; and that I have not voted at this election.’ And if the person so offering his vote, shall take such oath or affirmation, his vote shall be received, unless it shall be proved by evidence satisfactory to a majority of the judges, that said oath or affirmation is false; and if such person refuses to take such oath or affirmation, his vote shall be rejected.” (1)
These are all the provisions contained in the act, in relation to the qualifications of voters.
Did Spragins, then, in receiving Kyle’s vote, violate this section of the law, so as to subject him to the penalty contained in the twenty-third section of the act ? I think not, for the reason, that it is agreed, that Kyle was a resident of Jo Daviess county, and had resided in the State for more than six months immediately preceding the election. Had ICyle been challenged, he would only have been required to swear to what is admitted to be fact, by the agreed case. A challenge, then, by Spragins, was wholly unnecessary, and would have been an act of supererogation on his part. If Kyle had taken the oath, and it appears he could safely have done so, the judges of election would have been compelled to receive it. They have no discretionary power, for the law is imperative, that the vote shall be received, unless evidence is produced that it is false. This falsity can only be proved to exist, by showing that the person offering to vote has not resided in the State for six months immediately preceding the election, or that he is not twenty-one years of age, or that he has voted before at the election.
Whether the person offering to vote is an unnaturalized foreigner, is a question which the judges of election have no right to investigate, under the existing laws. If the voter comes within the letter of the law, the duty of the judge is plain. There is no ambiguity in the word resident. Every man is a resident, who has taken up his permanent abode in the State.
The question, then, whether Kyle was an inhabitant, and entitled to the right of suffrage, within the meaning of that word in the Constitution, is not a subject of enquiry by the judges of the election. I am, therefore, of opinion, that Spragins, in admitting Kyle to vote, has not violated the statute, and is consequently not liable to the penalty. On the constitutional question, whether unnaturalized foreigners, who are permanent residents of the State, have a right to vote, I forbear to express an opinion, as I believe, xvhile our election laws remain as they are, the judges of elections are bound to receive the votes of such persons.
In support of the views above expressed, in relation to the meaning of the word “ resident,” I refer to the case of James Brown v. Richard R. Keane, decided in the Supreme Court of the United States, (1) where that Court held, that the word “ resident ” does not mean a citizen.
R. L. 253, 254, Gale’s Stat. 268.
R. L. 246, 247 ; Gale’s Stat. 863.
8 Peters 112 .