This is a proceeding designed to determine the constitutionality of a supplement to the Election act passed by the legislature on October 9th, 1928. The court determined to decide the question raised upon its merits. This renders it unnecessary to consider whether the Declaratory Judgment act, under which the proceeding is instituted, is applicable. The act under review provides that in counties of the first class (Essex and Hudson) it shall be the duty of the superintendent of elections to investigate *Page 67 all registry lists, and whenever, as a result of such investigation, he shall have ascertained that persons registered are (1) dead; (2) have moved from the place of registry; (3) have been registered from some place other than the actual residence of the person whose name appears upon said registry; (4) are not entitled to vote at such election from the place of registry of such person; or (5) are not qualified to vote at such election, he shall serve an order in writing signed by him upon the proper district board of registry and election, ordering said district board to refuse to allow said person or persons to vote at such election. The act provides that no such order shall be signed unless notice to the person to be affected thereby shall be given in the manner prescribed by the act. It is unnecessary to mention the various methods for the service of the notice prescribed by the act as the method used, from an inspection of newspapers in said counties, is the one provided by the act that the notice shall be published at least two entire days before the issuance of such order in two or more daily and one weekly newspaper published within the county. The notice gives the names and addresses of the persons affected and notifies them of the proposed action of the superintendent of elections with reference to the issue of said order. The statute does not require the specification in the notice of the ground upon which the order is made.
The act further provides that this order shall be receipted for by the judge of the district board of registry and election who shall use said order in conjunction with the registry list so that no person whose name appears upon said order shall be allowed to vote. The last day upon which such an order may be made is on the Tuesday preceding the election.
The act also prescribes that any person affected by the action of the superintendent of elections shall, during the week immediately preceding the election and on election day, have the right to make application to the Court of Common Pleas of the county for the purpose of obtaining an order entitling such person or persons to vote in the district in which said person or persons actually reside. The act provides that before the judge of the Court of Common Pleas *Page 68 issues such an order the superintendent of elections shall be heard, personally or by his chief deputy or assistants, as to the reasons why said superintendent of elections has issued the order denying said person the right to vote.
The act requires that the judge of the Court of Common Pleas shall cause a full record of the proceedings of such application to be stenographically taken, transcribed and filed in the office of the county clerk of said county. For any dereliction of any member of a district board of registry and election with respect to the act, his conduct is made a misdemeanor and upon conviction he is subject to a term of imprisonment not exceeding three years or payment of a fine of $1,000, or both. There is no provision in the act by which the superintendent of elections is liable to punishment for any act which he may do under the statute.
In the case of Ransom v. Black, 54 N.J.L. 446, the late Mr. Justice Dixon, on page 460, said:
"The right of suffrage is constitutional, and is conferred in these words [article 2, paragraph 1]: `Every male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this state one year, and of the county in which he claims his vote five months next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people.' * * * It must be conceded that legislation is necessary to determine who are legal voters, to provide for them the means of voting, to prevent all others from voting, and to ascertain the result of the vote. All legislation conducive to these ends is therefore permissible. * * * Outside of these purposes, I see no room for legislative interference with the right of suffrage."
It has always been the policy of the law to make easy the exercise of the right to vote. In the Election law, paragraph 139, section 31, of article 11, it is provided that:
"All persons entitled to the right of suffrage in the election district shall be entitled to be freely heard in relation to the revision and correction of the registers by the district boards of registry and election, the county boards of election or by the courts for any election." *Page 69
While the legislature has the power to regulate elections, and to preserve their purity, and to guard against abuses to the elective franchise, these laws must be reasonable, uniform, and impartial, and must be calculated to facilitate and secure, rather than to subvert and impede, the exercise of the right to vote. Capen v. Foster (Mass.), 12 Pick. 488.
The power of the legislature in such cases is limited to laws regulating the enjoyment of the right by facilitating the lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation, not destruction. Attorney-General v. Detroit, 78 Mich. 545.
"All regulations of the elective franchise must be reasonable, uniform and impartial; they must not have for their purpose, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise. If they do, they must be declared void." 2 CooleyConst. Lim. (8th ed. — 1927) 1370.
With these principles in mind I will endeavor to point out wherein the law under review these principles have been violated.
It is conceded by the majority of this court that the superintendent of elections in making the investigations required by the statute and the order acts judicially. It could not be otherwise, because he is required before making the order to pass upon questions of fact and law, such as whether a person who has been duly registered is twenty-one years of age, whether he has lived in the state for one year and in the county five months, is a citizen, born or naturalized, has been convicted of crime, an idiot, insane person, or pauper, c. The ascertainment of these questions are judicial or quasi-judicial acts.
"A judicial act is usually done by a court, but it may be done by an executive officer or by a legislative body. * * * When an executive officer is given power to impose an obligation on a person or deprive a person of a right if he finds that a certain fact exists, the officer who finds the existence of the fact acts judicially." Restatement No. 2, Conflict of *Page 70 Laws, American Law Institute, section 76, and cases cited in the commentary thereto.
The essential requisite to the exercise of judicial functions under our system of jurisprudence is an opportunity to be heard before judgment or a finding is made. In the case of King v.Chancellor, Master and Scholars of the University of Cambridge, 1 Strange 557, Mr. Justice Fortescue said:
"The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam before he was called on to make his defense. `Adam, where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?' And was put also to Eve."
In the case of Windsor v. McVeigh, 93 U.S. 274, Mr. Justice Field, one of the most eminent jurists who ever sat in the Supreme Court of the United States, said:
"A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal."
This principle has been adopted in this state in the case ofHubbard v. Montrose Shingle Co., 79 N.J.L. 208.
The act under review affords no opportunity to the elector who has followed the laws respecting registration and had his name placed upon the registry list and has thus established presumptively his right to vote, to be heard before the order is made by the superintendent of elections which directs the election board in which he is registered to refuse to allow the elector to vote. I have been unable to find in my researches of the law any court which has sustained a law with similar provisions. It is claimed by the majority of this court that the notice to be served two days before the making of the order is in effect a rule to show cause which will enable the elector to appear before the superintendent and show cause why the order as to him should not be made. It would be a sufficient answer to this argument to say that the statute prescribes no such provisions. The notice is merely *Page 71 an announcement to the elector of the proposed making of the order. The decision has been reached by the superintendent of elections prior to the giving of the notice. The notice is but an announcement of the judgment previously arrived at by the superintendent of elections. There is no provision in the statute for the specification in the notice of the ground of the proposed action, no place designated for any hearing, and no time fixed. Moreover, where in a single county a list of approximately thirty thousand voters is advertised as coming within the condemnation of the superintendent of elections, it is impossible that he should be able to afford within two days a hearing to each of these electors to be affected by his proposed order. The legislature evidently had in mind the necessity of notice where one's right to vote is to be abridged, but the notice prescribed by the act is mere camouflage. It in no way fulfills the lawful requirements of such notice which will afford the elector his constitutional right to be heard before he is barred from the exercise of the high and sacred right of every free man to express his choice for those to whom he desires to trust the reigns of government. For the reason that the act affords an elector no opportunity to be heard before his right to vote is abridged I deem the act unconstitutional.
It is next suggested by the majority of this court that the notice plus the right of appeal to the Court of Common Pleas makes the law constitutional. To me this is a novel and startling proposition. It is tantamount to first condemning an elector and then asking him to prove his innocence of the offense within the mind of the superintendent of elections. It is like attempting to give a court the power to enter a judgment without the issue of process and without acquainting the defendant with the particulars of the cause of action, and then saying to the defendant that as he is given a right of appeal the judgment against him is legal as the right of appeal is all that he is entitled to.
Attention has been called to those authorities which hold that all regulations of the elective franchise must be reasonable, uniform and impartial, and must not have for their purpose directly or indirectly the denial, abridgment or impeding *Page 72 of the constitutional right of a citizen to vote. If regulations are of such a character they are void. An examination of the provisions of the statute under review respecting the appeal to my mind clearly shows that they are unreasonable and designed to impede the elector in the prosecution of his rights. The appeals are to be heard only by the Common Pleas judges, where prior to the passage of the legislative act under review, when the object was to obtain judicial action to strike a name from the registry list, other judges were also empowered to act. The statute also provides that before a court order can issue the superintendent of elections shall be heard personally, or by his chief deputy or assistants, why the superintendent has issued the order. A full record of the proceedings is required to be taken stenographically, transcribed and filed. A formal hearing is thus substituted for a summary hearing. Summary hearings were had under the law as it existed prior to the passage of the act under review where applications were made to the courts to strike names of persons from the registry who were not entitled to vote. How is it possible, under the provisions of the law under review, where in one county approximately thirty thousand persons on the registry lists are affected, for this large number within a period of eight days (one being a Sunday) to have their rights determined? They are not, in the first place, informed upon what grounds the order is made. This renders it at least difficult, if not impossible, prior to the hearing of the appeal to know what is the cause for the order disentitling them to vote. This situation impedes the preparation of the voter's appeal. It is not at all improbable that thousands may wait at the doors of the courts for the full period of time between Tuesday, October 30th, and November 6th, next, without ever having their appeals heard. It also must be remembered that it is improbable that the action taken under the statute will be against rich and favored persons, but that it is probable that it will be taken against those who occupy the humbler positions in life whose time must necessarily be spent in daily work to obtain the necessaries of life for themselves and their dependents. Should these persons be obliged to consume days in attendance upon a court to *Page 73 secure, if possible, the correction of a mistake in the order of a superintendent of elections, which might never have been made if an opportunity had been afforded by the statute to the electors in the first instance to state their contentions? Is such a statute reasonable and impartial? In my opinion it is not. It destroys or impedes the exercise of a constitutional right. For this reason I deem the statute unconstitutional.
It has always heretofore been the aim of legislation to encourage citizens to vote. The complaint has been quite general that a greater number should exercise the franchise. Such legislation as that under review will act as a deterrent to many who otherwise would vote. Many who have the right to vote would prefer to refrain from voting rather than be subjected to the financial loss and annoyance of correcting what may be a clear mistake upon the part of the superintendent of elections.
I regret that the time for the preparation of the views herein expressed has been so short that it has precluded a fuller discussion of the questions involved in this proceeding; questions which I deem to be of great importance to the perpetuation of the principles under which our form of government was conceived, and has endured.
Mr. Justice Minturn and Mr. Justice Campbell have desired me to say that they concur in the views herein expressed.