Dissenting opinion by
Thompson, C. J.Not being able to concur in the opinion expressed by the majority of the bench, that the Act of Assembly, known as the Registry Act, approved April 17th 1869, is constitutional, respect for them, and duty to the public, require a statement of some, at least, of the reasons which have compelled me to dissent from that opinion. This I will do as succinctly as possible.
It is an axiom with us, in this country, that all governmental power is primarily in the people; that laws are enacted only to *86embody and give expression to their will, and to declare in what manner, and by whom, that ’will is to be exerted and made practical. To this end, therefore, laws are enacted by the people in their primary capacity, and called constitutions; and secondarily, by legislators acting under these constitutions. The former cannot be limited, abridged or altered by the latter. The constitution is the supreme law and rule of action, to which both people and legislature must bow in submission, until it be changed by the authority which established it — the people. Wherever it declares a right, the right necessarily is irrevocable by any power or means, direct or indirect, excepting only by the people acting in their primary legislative capacity; in other words, by altering or changing the constitution in which it is declared.
Of this nature are the provisions of the Constitution of this Commonwealth relative to elections by the people. It is there declared in affirmative and most explicit terms, who shall enjoy the rights of electors, and on what terms. No power, therefore, short of the people themselves, acting directly on these provisions, can detract from the rights declared, or add a syllable to the qualifications agreed therein to be essential to their enjoyment. To attempt such a thing would be an effort at usurpation; its success, an overthrow of the Constitution itself. No one will disagree with the affirmation, that if the right of elections by the people, secured in the Constitution, be subject to legislative restriction or limitation, as times change and parties dominate, there will remain but little of the Constitution worth preserving.
Nor is it to be maintained that because an assault on a right avoids the boldness and effrontery of directness, it may be regarded as harmless and justified, because based upon an assumption of morality. Even although it might not be intended, it is an insidious mode of attack, and all the more dangerous. Better an open enemy than a secret foe; that an assault should be open than covert. I desire to deal, however, not so much with intention, although apparent enough for the passage of the law under consideration, as with its effect and operation on the equality and freedom of elections.
It may be safely assumed that whatever embarrasses or renders difficult of enjoyment an undoubted right, just so far it impairs the right itself. To speak without circumlocution, and to the point under consideration, it seems to me an incontrovertible position, ..that whatever legislation embarrasses and renders more difficult than is requisite to its enjoyment, the right of an elector to vote, impairs the right itself, and as a consequence is a violation of the provisions of the Constitution on the subject. This is the doctrine of this court as expressed in The Commonwealth v. Maxwell, 3 Casey 444, wherein it was said, “ A law intended to take away, or unnecessarily postpone or embarrass the right of election, *87■would be set aside as unconstitutional.” This was repeated, as sound in the opinion of this court, in Page et al. v. Allen et at, 8 P. F. Smith 388, declaring the Registry Act of 1868 unconstitutional and void. Common sense would revolt at any other doctrine. That this was said of an attempted construction of law which would postpone the election by the people of a judge, does not distinguish it from the embarrassment of the right of an elector in any other case, as contended for in argument.
A right surrounded by such details, requirements and difficulties as to embarrass its enjoyment at every step, is hardly to be regarded as a right at all. It is more properly characterized as a chance for the enjoyment of the specific right. In my judgment, after a most sedulous effort to master and comprehend its details, that is just the nature and character of the right pertaining to a large body of electors in the city of Philadelphia, under the Registry Act. Learned professors of the law may possibly master its numerous and involved details; the masses never can thread its mazes, unless furnished by some friendly hand with a clue to lead them through and out of the labyrinth. One would naturally expect plain provisions in aid of the enjoyment of a plain right, if that were the purpose of the enactment on the subject.
This, act was undoubtedly intended to render the exercise of the right of voting by the electors of this city, more difficult than under the Election Law of 1839, a law, under the provisions of which the people contentedly voted for thirty years, and for the repeal of which, so far as appears by the journals of the last legislature, not a petition emanating from the people was presented. The professed, and possibly the real object of the law, was to prevent fraud in elections by voters. If this was the view of the framer of the act, I must in charity believe that it so engrossed his attention, as to lead to forgetfulness that among the barriers so ingeniously contrived to. prevent it, the defeat of the duly qualified voters must inevitably occur. A remedy for a disease must be regarded as empirical, which would only eradicate it by producing a worse. If frauds were imminent by simulated voters, let penalties be provided for the rogues, and set honest and vigilant men to watch them, but let not the rights of honest voters be sacrificed to these apprehensions. If such were the principle of legislative action on the question of a preventive remedy, assuredly the fewer votes there should be allowed to be polled, the more the danger of fraud in voting would be diminished, and it might be entirely prevented if no voting whatever were allowed. To this absurd result, the principle necessarily leads.
But I have shown, I think, that to embarrass a voter in the enjoyment of his right, impairs the right itself, and is against the constitutional grant of it. That this act does so in the case of a large class of voters, we have it conceded by the learned opinion *88of the majority. “ True, the omission” (from the primary assessment of their names), says the opinion, “ requires of single men, clerks, journeymen and transient persons, a greater vigilance to ■secure their suffrage, but the hardship is not imposed by the law, but the necessity which requires it, in order to protect them, and all other honest electors, from being supplanted by it.”
Hardship is thus admitted to exist as to the class of voters mentioned.
But why should they be subject to greater hardships in the enjoyment of their rights than others? Why not subject all alike to the simple process allowed by law, as in other cases, to establish their rights when they offer to vote ? The Constitution confers a perfect equality of rights on all citizens of competent age and qualification to exercise the rights of electors. Is this to' be set aside by an assumption of frauds practised, even if the fact be undoubted ? Certainly not, or honest men might lose their rights because rogues exist. But the reasoning based on the assumption, like the law, in this case, is applicable only to Philadelphia. The assumption must be that there are no rogues in the other cities of the state, or in the country districts; if this be not so, the act is simply a discrimination to cut down the voting population of Philadelphia. Such an assumption would be absurd, as the foundation for legislative action. Fraudulent voters are to be found in these cities, and in the country, as well as in Philadelphia. Why then impose the “ hardship” and require vigilance,” in order to enjoy a right common in origin and extent to all, on voters in the city ? I hold that hardship, which is another term for embarrassment, in the enjoyment of the rights of an elector, imposed by law, impairs the right and is inadmissible, as the result of legislation, even if co-extensive with the state; but when there is superadded to this embarrassment of city voters, inequality in the manner of the enjoyment of the right between them and other citizens of the state, the character of the act seems to go beyond an interference with rights simply, and to reach to an attack upon their liberties.
Neither .during the argument, nor upon reflection since, have I been able to discover wherein the idea of these inequalities is deducible from the Constitution, or how one class of citizens in a particular locality in this Commonwealth, shall not enjoy a grant of a right to all sections and to all citizens possessing the same qualifications without distinction of qualification, and be constitutionally subjected to different laws, imposing hardships on it not imposed on all! The plain words of the Constitution teach perfect equality, so far as the law is concerned, in regard to rights established by it. It is to be read and understood according to its words, in their usual and ordinary sense, said Gibson, C. J., in Monongahela Navigation Company v. Coons, 6 W. & S. 101, *89quoting as authority the opinion of Tilghman, C. J., 3 S. & R. 69. There is not a shadow of a shade, for an implication of possible inequality by law in the exercise of the right of an elector in the Constitution, and that there is a strong implication to the contrary, was the candid admission of the most experienced of the counsel who argued in support of the law. It cannot escape the attention of any reader of the Constitution, that each class of electors— for the difference in qualifications justifies the propriety of classification — stands on the same footing, wherever its members are to be found, whether in the city, or in the country; and so they have always stood, with the exception of the period of three years, covered by the discarded and unjust Registry Act of 1836. That equality is destroyed by this act, and that persons will be free and unembarrassed to exercise the right of suffrage out of the city, while others with the same qualifications exactly, shall not exercise it on the same terms in the city of Philadelphia, and may not be able to enjoy it at all, owing to the embarrassing provisions in regard to the proof required, is, beyond dispute, the effect of it.
It has been argued that inequalities are necessarily incident to the exercise of the rights of the electors. And those of the locality of the voters, and differences in the time of opening and closing the polls in some places from others, and differences in laws creating election districts, have been referred to. I need not spend time in showing that such diversities, partly natural, and where otherwise, the result of laws asked for by the electors themselves, or not complained of, are not parallel to the case where the actual right of voting is infringed — impaired, and to a large extent rendered impossible by law, as will be shown in the case under the law in question. But even in regard to some of those regulations, cited as illustrative of the argument, if they should have the effect to defeat, or greatly embarrass the right, and so intended, no matter on what pretext, or for what purpose, they would be unconstitutional and void. If, for instance, but a half an hour, or an hour, were in populous districts only allowed to electors to deposit their votes; or the places selected for the purpose were such as to be a virtual denial to all but the vigilant and vigorous to exercise the right of electors, would anybody doubt the invalidity of the legislation which should sanction such things ?
The Constitution of our Commonwealth is an inviolable charter of equality of rights to all in the exercise of every right established by it, and there is not a shadow of an implication that it was not so intended in regard to the rights of electors. Read it. It says: “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in the state one year, and in the election district where he offers to vote ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before *90the election, shall enjoy the right oe an elector.” The remainder of the section need not be quoted in this connection.
Now it is an elementary principle of law, that all general statutes operate equally on all persons or things embraced by their terms, within the jurisdiction of the law-making power, where there are no restrictions or limitations contained in them. Shall the Constitution have a different construction ? Shall limitations be implied, which import possible inequalities among the people themselves in an instrument, the purpose of which was to guard against any such thing ? The most skilful casuist will search in vain for a reason which would be satisfactory, why the people should intend that the legislative body, created' by themselves, to act in obedience to the Constitution, should have the power to diversify the enjoyment of their guaranteed, uniform rights, especially the right of suffrage, the corner-stone of the government, or render the enjoyment of it contingent, uncertain or hurthensome, to any of the classes upon whom it was conferred. The grant being identical to all qualified to exercise it, and without restrictions imposed on any, not imposed on all the classes enumerated, it seems to me it would be a palpable perversion of the rule to hold that the Constitution sanctions legislation establishing a different, or changing the rule established by itself. The clause quoted establishes a uniform rule throughout the Commonwealth, and commands that every citizen possessing the qualifications mentioned— no more, no less — “ shall enjoy the rights of electors.” This is the rule of the Constitution. Can the legislature say that the electors may be subjected to a different rule? This would overthrow the rule. That this is the effect and result of the maintenance of this registry act, as between different portions of the Commonwealth, as well as citizens, my brother Sharswood has shown most conclusively in his opinion in the case at Nisi Prius, to which nothing could be added to strengthen the argument. Indeed, so conclusive was its reasoning regarded, that it wrung assent to its doctrines from unwilling quarters, if party predilections may be considered. A majority of my brethren, however, have discarded the uniformity and universality of what we claim as the rule of the Constitution, and have accorded an omnipotence to the legislative power equal to changing it, and establishing another and different rule, one which subverts both the uniformity and equality of the Constitution. The evils of such a conclusion I fear will not end with the partial legislation contained in the act. It will be a precedent for other legislation of the same character, and in time the electors of one county may be subject to terms of registration infinitely more embarrassing and onerous than those of another, by which virtual disfranchisement may ensue to many electors, otherwise entitled to enjoy the right.
We have been admonished in the opinion of the court that *91apprehension of an abuse of power, is not a legitimate ground on which to base an opposition to its unlimited exercise by construction. It was the apprehension of abuse of power by legislative bodies that brought into existence constitutions themselves. The argument against the apprehension is an argument for uncontrolled authority — no more, no less — and that is despotism. I admit that it is not an argument where the power is express, but we are treating of a case in which the power is far from being express, to create different terms on which the right of electors may be enjoyed in different counties and cities. The difference between us is, whether that construction is best which allows to the legislature the unlimited power to discriminate between the people of the different sections, and even of the same section, to the extent of embarrassing the one and allowing unencumbered facilities to others; in other words, constituting privileged sections and privileged classes of the same section; or that which denies all inequality by law, among the qualified electors of the state. That is the contest here, and who that hopes for fairness in elections can hesitate about who is right ?
It seems to have been assumed by the draftsmen of this bill, and adopted in the opinion of the majority, that there is something of a lower degree of morality in the city of Philadelphia than in other cities of the state, which justifies a different rule in regard to its electors, and requires them to be more closely scrutinized in the exercise of their rights. “ Clearly,” says the opinion, “the feature complained of” (the difference between the rules for registration in the city and country) “is a useful provision to protect the rights of the true electors of Philadelphia, and to reach the unqualified persons found at such convenient places just upon the eve of an election, when votes are needed by unscrupulous men. Its purpose is to exclude the fraudulent element * * * in order to protect other honest electors from being supplanted by fraudulent voters. What clause of the Constitution forbids the power to be exercised according to the exigencies of the 'circumstances” * * * * “Where low inns, restaurants and boardinghouses constantly afford the means of fraudulent additions to the list of voters, what rule of sound reason or constitutional law forbids the legislature from providing a means to distinguish the honest men of Philadelphia from the rogues and vagabonds who would usurp their places and rob them of their rights ?” This assumption is thus, at least apparently, the justification of this act.
It would seem, therefore, only necessary to assume a want of morality in a particular district, to justify the legislature in dealing with that locality, so as to embarrass the rights of its electors, and impede the exercise of them to any extent which may be thought necessary, in order to distinguish the “honest citizens from the rogues.” It will be a sad day in this Commonwealth *92when such a right as that of an elector shall be made to depend on such an assumption, and that, as already said, is what seems to be the justifying rule for the legislation in question.
It is claimed that this legislation is a regulation of the exercise of the constitutional right of suffrage. It is a perversion, it seems to me, of the right to regulate, to carry it to the extent we have here, of virtually destroying, p,t least impairing, the rights professed to be regulated. A regulation must necessarily be subservient to, and in aid of, the thing regulated. An elector is not surely to be deprived of his right by a regulation; this would constitute the regulation superior to the right. The order of things would thus be inverted. Chief Justice Chase has lately expressed the true idea on this point, in The State of Texas v. White, Am. L. Reg. 1869, p. 765, namely, that the means necessary to execute a power must be only such as are necessary and proper for carrying into execution the power conferred.
The difference in the requirements under this act, in order to enjoy the rights of an elector in Philadelphia, and the same rights in other portions of the Commonwealth, does not stand on the power to regulate. The reference I have made to the opinion of the majority, it seems to me, admits this, and shows that the object is exclusion, by restricting, under pretence of excluding fraudulent votes. I have shown that so far as regulations embarrass and interfere with the enjoyment of the rights of an elector, it is an infringement of his constitutional right, and void. This must be so, for if the legislature may, to any extent, interfere with the right, it has no limit but legislative will, if the Constitution be impotent to protect; and the more uncertain will the right become, in proportion as party spirit intensifies the fears of the party which happens to be in power, that its opponents are about to overthrow it. The assumption of the fact of instances of fraudulent voting (and it seems it needs no more solid foundation), may be made the foundation to increase the requirements to be registered, and consequently impose difficulties in the way of voting, so as to render it in a great measure impossible. That is what legislation, like that we are considering, will be sure to lead to. Year after year, different and more complicated regulations may be required in particular localities, until the right becomes virtually abolished.
We will now for a moment recur to the operations of the Registry Act in Philadelphia, compared with its operations in the country, and in the other cities of the state, and in this examination it cannot fail to be seen how different are the terms on which the constitutional voter exercises rights in the former and in the latter.
Outside of the limits of the city, the assessors furnish the list of voters, and return indiscriminately the names of all whom *93they know to be qualified voters, whether housekeepers or boarders, and in ease of non-assessment, they may be added to the lists, by simply applying to the assessor, and if proof be required, any competent witness can make it.
In the city, the assessors are' allowed only to return, on their own knowledge, qualified householders, and persons residing therewith, and qualified electors keeping inns or hotels, sailors’ boarding-houses, and restaurants, but are prohibited from entering upon their lists the names of any qualified elector or other person who might be qualified, who happen to board at either of these places, or the name of any qualified elector who has not a fixed residence.
Electors who happen not to be householders, but only boarders, can be assessed only’on making personal application to the assessors of the ward, before the 20th of September in each year, at the time appointed by the board of aldermen for making extra assessments, and then on proof by two qualified electors of the division, that is to say, by two electors of the class of registered householders, or hotel, or sailor boarding-house, or restaurant keepers, that the applicant is a resident of the division, and if required by any of the assessors, these witnesses must state that “ they verily believe the applicant will he a qualified voter at the next general election.” This is in disregard of the decision of this court last year, that such proof cannot be required before election day, and is a qualification required by this act to be proved, notwithstanding it is in anticipation of the time of voting.
In addition to the proof by the special witnesses, the applicant is required, in effect, to give to the assessors a synoptical history of his life. He must state, under oath, his age, where born, place of residence, occupation, number of the house’where he boards, how long he has resided in the state, the date of the commencement of such residence, what election district he claims to be assessed in, and “ that he now resides in the city of Philadelphia, and that he has no other place of residence, and that he did not remove to the said election division for the purpose of voting therein, but for the purpose of making it his place of residence.”
After all this has been embodied in the certificate contained in the act, being a form for all cases, a tax of fifty cents is to be assessed on the applicant, without any reference to the fact of prior assessments which may have been made the same year upon the property of the applicant, or of taxes paid by him; and being furnished with the certificate, according to form, signed by the assessors, he may present it to the receiver of taxes, and on paying the sum therein assessed upon him, he is then entitled to a special receipt from him, reciting the assessor’s action' in his case. Having gone through all this, the applicant is supposed to be assessed and a qualified voter, unless the canvassers strike out *94his name by drawing “ a red line through it,” as they may do, or he is not successfully challenged at the polls.
This is but a sketch of the process through which the non-householder in Philadelphia must go. Who can imagine the annoyances and difficulties which will be actually encountered in passing through such an ordeal ? The uncertainty of results and contingencies of enjoying the right after all, leave it but the shadow of a right; a chance in many opposing chances, to vote! It would be an impeachment of common sense to argue that there is not here a most flagrant discrepancy and embarrassment created by law between the citizens of this Commonwealth in the enjoyment of the right of electors. In the country districts, proof of residence can be made by any single qualified elector, whether a householder or not; in the city, two are required, and they must be householders ! As if truth were truth only from the mouths of this privileged class!
I may admit, however, without injury to my position, that it may not have been intended by this act to impugn the moral character of the class of electors who are neither householders, hotel, restaurant and sailor boarding-house keepers, by constituting the latter exclusively the witnesses to prove residence in order to put an applicant on the extra assessment lists. That was perhaps not the object. The object was to render the proof of residence more difficult! No reason but this can be assigned. No man, however clear his right, can be assessed at the extra assessment, if proof of residence be demanded, as it will always be sure to be; indeed, as required, if I comprehend the law, unless personally known to the privileged class of witnesses, viz.: householders,' innkeepers, restaurant and sailor hoarding-house keepers of the division. The fewer persons known by them the fewer names will be found on the lists. If one witness were competent to establish the fact in each case, nearly all applicants might possibly be registered, but two must know the applicant’s residence. Even then, how are the applicants to compel the attendance of these important witnesses? There is no provision to compel it; no subpoena is authorized to be issued, and no power given to punish for contempt in disobeying it, if it were issued. It is in every feature a scheme to prevent registration, and by this means to deny to the citizens of Philadelphia the enjoyment of the rights of electors which the Constitution has said they shall enjoy, and which are enjoyed elsewhere. Age, residence, taxation, and every qualification may be perfect, but unless the two qualified witnesses voluntarily appear to attest to. the residence of the applicant he cannot be registered, and he cannot vote at the polls. This is truly an- uncertain tenure upon which this great right is made to depend.
With a prescience that seems to have foreseen designs and *95schemes to weaken and destroy this right, it was attempted to be guaranteed as a right to be enjoyed by all citizens possessing the constitutional qualifications, and therefore in the Bill of Rights it was solemnly declared:
“ That .elections shall be free and equal Art. 9, sec. 5, Constitution.
Of this provision, as well as of the other provisions in the Bill of Rights, sec. 26 of the Constitution provides that,
“ To guard against transgressions of the high powers which we have delegated, we declare that everything in this article (the Bill of Rights) is excepted out of the general powers of government, and shall EOR ever remain inviolate.”
The declaration “ that elections shall be free and equal” it is said is satisfied by limiting electors to an equality in number of votes that each may give. This position is necessary in order to arrive at another; that inequalities in the exercise of the enjoyment of the right must yield to the power to regulate it. And this leads necessarily to the corollary that every qualified citizen may give the same number of votes as any other individual, provided that regulations, such as registration acts, are not complex enough in requirements to exclude the voter altogether. I submit that such a deduction is inevitable, if regulation may go the length claimed in this act.
I have shown, I think, that all regulations must relieve and operate in aid of the right to be regulated, and whenever they tend to defeat it they are void. I have also shown, I think, and will further show, that this registry act not only embarrasses but tends to defeat the rights of electors altogether in many instances, and that it is discrepant between sections and between individuals. Can it be constitutional? The solemn declaration in the Bill of Rights is nothing if this be its interpretation, and the act in question be a true exponent of it.
But it is claimed that uniformity is not the rule of the Constitution, because an amendment proposed in the Constitutional Convention of 1837-8, “ that the election laws shall be uniform throughout the state, and no greater or other restrictions shall be imposed upon the electors in any city, county or district than is imposed upon the electors of every other city, county or district.”
It is true this amendment was offered, but it is equally true it was never voted on at all by the Convention. It was disposed of by a call of the previous question, which had the effect to cut off all the proposed amendments, and brought the Convention to a direct vote on the section. This was the effect of the previous question under the lex parliamentaria: Cushing’s Law and Prac. of Leg. Assemblies, §§ 1418 and 1526, and was its effect on the amendment in question in the Convention, as appears by the opinion of the majority in this case.
*96The only evidence, therefore, that is deduced, or deducible, from the failure of this amendment, consists in the fact, that the Convention sustained the previous question, which cut it off with all others proposed or intended to be proposed. It is not a legitimate deduction, that the previous question was sustained in order to cut off that particular amendment, or because of it. As there is nothing to disclose the reason any member may have had for his vote in sustaining the previous question, and as each may have had a different reason, some because of the amendment in question, or others meditated were not needed, the section of the Constitution without it importing uniformity by its terms; others, that it was not in proper form perhaps, or out of place; and still others desirous of ending debate on the section and preventing all amendments ; each having his own individual and undisclosed reason, it does not follow that uniformity in the election laws was not intended. The Constitution is to be understood by a plain reading of what it contains, and not by what it does not contain. It is the instrument of the people — to be read and understood by them in its plain, untechnical sense, and in this sense it is to have effect, and not in what it does not say, nor by what may have been understood. Of similar terms used, perhaps, hundreds of years ago, as in the Statute of Westminster, cited as an illustration, they may adorn an argument, but fail to rule the interpretation of the Constitution. I regard this proof that the election laws need not be uniform, as without the slightest force whatever.
The fact that in 1836 a registry law for Philadelphia was passed and existed for a time, advances the argument for non-uniformity not a step. Whatever there is in the fact that it was passed, is counterbalanced by the fact, that it was in a very short time repealed, and the Act of 1839 passed, by which an entirely uniform system throughout the whole state was established. It was tried long enough, however, to demonstrate its capacity for perpetrating the most frightful frauds on' the rights of electors, and on the results of elections. Many reasons might be given why it was not judicially tested in this court, and among them is the fact that chancery jurisdiction was only, in the same year, conferred on this court, and was new in practice, as it was unsettled in the extent of equity jurisdiction. But it is a feeble inference of its constitutionality that it was not so, tested, considering its brief existence. If there be any force in such an inference, it results from the assumption that what has not been adjudicated upon at all, is to have the same effect as if it had been; an inadmissible conclusion certainly.
The character of uniformity which the Constitution, in ease of qualified electors, requires, is utterly set aside as to one class of them, viz., naturalized citizens.
Everybody knows, or ought to know, that a naturalized foreigner is a citizen, by a law of Congress, and entitled to all the rights of *97native born citizens. In this registry act, § 1, applicable to the country and other cities of the state, the foreign born citizen can be assessed ten days before election, by presenting his certificate, and without it, if he has been a voter in the district five years, and without being naturalized even, if he has declared his intention, and will be entitled to naturalization before election day. Sons of naturalized citizens may also be assessed, on proving citizenship, by virtue of their fathers having been naturalized.
In the city of Philadelphia, the rule is widely different. No citizen can be assessed later than seventeen days before election day. On the subject of naturalized citizens, the 85th section speaks: “ Every person of foreign birth, claiming a right to be assessed * * * shall, in addition to the proof of residence (by two qualified, i. e., assessed householders), prove that he has been naturalized conformably to the laws of the United States, and as evidence thereof, he shall produce a certificate of naturalization .under the seal of the court in which said naturalization took place, duly attested by the signature of the prothonotary or clerk, in his own proper handwriting; and shall prove by the oath of a qualified elector of the division, that he is the person named in the said certificate, and the person to whom it was issued * * * when and where he was born, and when and where he obtained the said certificate, and from whom, &c.” And no foreigner, having declared his intentions, although entitled to naturalization before election day, can be registered in the city, and consequently cannot vote, although actually naturalized, before that day. There is no provision for the assessment and registration of such, nor any that I can see, for the registration of the sons of naturalized citizens. These two classes, it seems to me, are excluded in the city, although the most conclusive proof might be given of their constitutional qualifications on election day. Citizens of full age, and tax-payers, they may be on that day, yet, as classes, they are utterly excluded from enjoying the right of electors. Notwithstanding all this, we are assured, nay, it is decided, that the act which produces such a result is binding and valid. I do not think so, for my part.
The provisions of this section of the law cannot be read, I think, without the conviction following, that they were incorporated with a view to exclude, as far as possible, foreign born, or naturalized citizens.
How is it possible, it may be asked, for such an applicant for registration, to prove the handwriting of the clerk or prothonotary who signed his certificate ? He may have been a resident of a distant country, or in a different state, and how is he to prove it under such circumstances ? Having proved it, how is he to bring conviction, that the proof is true or sufficient, to the minds of the assessors ? How is he to get the witnesses before them ? *98But suppose that established, how is he to make the additional proof that he is the very person to whom the certificate was delivered ? Formerly, the presumption was conclusive, when uncontradicted, that the holder was the person to whom it was issued, especially when supported by his own oath; now, he must prove this, if I understand the act — hut how is it to be done without a witness who saw it delivered ? Nor will it be possible in all cases, for the applicant to state the irrelevant facts of when and where he was born, and from whom he received his certificate of naturalization ? There being no requirement of such a thing in the law when he received it, he may never have thought it necessary to make the inquiry. Nor is it necessary; for the seal of the court imports all facts of due execution, and itself is conclusive. Yet this ex post facto requirement, if not proved as required, may defeat the elector. Impossible, in a majority of instances, as a compliance with these requirements will be, still the letter of the statute demands that it be done; and it can only be done by disregarding the terms of the statute. A break in the chain of requirement will defeat the elector. How can any provision be regarded as constitutional, the effect of which is not only to embarrass electors, but, in many instances, to strike down their privileges ?
In McCafferty v. Guyer et at, 9 P. F. Smith 109, Strong, J., in delivering the opinion of the court, in speaking of the right of an elector, said: “ It is in the nature of a constitutional grant of privileges that cannot be taken away by any authority known to the government. It involves a prohibition of interference with it.” This was said in what is known as the deserter cases, wherein it was contended that there was no clause in the Constitution prohibiting the legislature from forfeiting an elector’s rights for the cause of desertion mentioned in the act. That legislation was held to be unconstitutional, and other similar attempts, as shown in the opinion, to have from time to time been made, and proved abortive.
But I cannot leave this branch of the subject without noticing the inequality between citizens of foreign birth in the city of Philadelphia and out of it. In this city an unnaturalized citizen cannot be assessed, and if naturalized after the 20th of September, cannot be registered. Out of this city he may be registered if he has filed his declaration of Intention to be naturalized, and may be a voter if naturalized at any time before he offers to vote. Nor is the foreign born citizen obliged to pass through the ordeal of proof noticed, as required in the city, or in any other part of the state; and I see not how sons of naturalized citizens are to be registered in the city; outside of it, the law presents no difficulties. The Bill of Rights is a mockery, which declares that elections shall be free and equal, if such partial legislation be constitutional.
*99But the inequality of the legislation is even more signally illustrated in its operation between the citizens of Philadelphia themselves. One class, viz., private householders, and residents with them, hotel keepers, restaurant and sailor boarding-house keepers, may be assessed at the option of the assessors without auxiliary proofs. All other citizens are to be registered only on the -production of the special proofs I have already noticed, to wit — by two members of the privileged class. Outside of that class, even the judges who interpret the act,Af boarders, would not be competent to place a voter on the registry; two boardinghouse keepers of the division could. “ This,” says the opinion of the majority, “ is to exclude the fraudulent element, by compelling all persons, not known householders and fixed inhabitants, to come personally before the proper board and make proof of their rights.”
In this class-legislation — it is nothing else — there is an imputation against the morality and integrity of the non-housekeeping and hotel-keeping class as undeserved as unjust.
The presumption of the constitutional provision is in favor of the honesty of all electors alike. But even if true, as it is assumed, the voters of this class are neither to be excluded nor embarrassed. The rights of an elector rest not on any moral, but on a legal status. With the qualifications of the Constitution in his favor, he is not to be excluded on any assumed or even real ground of moral status. The governing power in this country is the people, and it -is made up of all classes. The compact between the people, namely, the Constitution, settled who should be voters, and this was a prohibition against interference with the arrangement. It is idle to say that that is not interfered with, if proofs be demanded of the right, so limited in character, on the assumption of want of morality in a certain class of citizens, as to render the proof itself precarious. That is the effect of restricting the testimony to establish residence to the privileged class noticed, viz., housekeepers, hotel-keepers, restaurant and boarding-house keepers.
Not only will the difficulty of proof deprive many a voter of his right, but inability to comprehend the multiplied requirements through which he must pass in order to be put on the extra assessments, an indispensable preliminary to voting, will defeat more. A little additional complication of details would exclude almost every man from the extra assessment. All boarders, clerks, journeymen, laborers and others not of the privileged class of housekeepers, &c., must get upon the extra assessment lists, if at all, by the kind of testimony and machinery mentioned.
In this country of equal rights, it can hardly be claimed that a statute destructive of an equality created by the Constitution, can be binding. But it is argued that it is so unless expressly prohi*100bited. This is always said where the pressure is severe for an argument, but is mostly untrue. There are many things that the Constitution does not prohibit, but which all will agree conflict with it. Is it necessary to find a prohibition, for instance, against an attack upon the principles of liberty itself? This is no stronger an instance than an attack which distinguishes unfavorably one class of electors as compared with another. That that is what the Registry Act does, I have shown, and it is not denied in the opinion which has been pronounced sustaining it. In is, however, as wearisome to follow in detail this incongruous legislation, as it is painful to contemplate its unequal, and therefore unjust operations. There is, nevertheless, a feature or two more I must not omit to notice.
The law in question is an election law, not a tax law. To enjoy the privileges of an elector, the claimant must submit to the imposition of a tax. Small though it be, it is in principle the same as if ten times as large. It is not said that the householding voter must pay it before voting, but it is positively required to be paid by all who may be placed on the extra assessment lists in the city. I presume this number will not fall short of one-tenth of tire voters, and may greatly exceed it. It is the privilege of the elector which is thus taxed; it is a step in the process of registration — which is a preliminary to voting — it is therefore a tax on the right. This is so beyond controversy; for no others than those who claim to be registered are assessed with this tax. The Bill of Rights ordains that elections shall be free and equal. Free on the condition of paying tribute for the enjoyment of the right, says the act. Is a right free which must be paid for ? The tax which the Constitution prescribes was to indicate who should be entitled to be electors; that was sufficient for that purpose— but that is not the purpose of this tax. Its object is to raise money for the city treasury. It is small now, but the principle sustained is capable of indefinite extension. Fifty cents is the limit this year, five or ten dollars will not be distinguishable in principle next. It is this year applicable to Philadelphia, next it may become a tax on Lancaster or Pittsburg, and Philadelphia be exempt. Yagrant — its inflictions will be feltjwherever party impulse may choose to send it.
Constitutional rights are inviolable from all quarters, whether by the embarrassing operations of tax bills or otherwise. This was intended to be the use of the Bill of Rights, and it places all rights declared, on the same footing. What would be said of a tax upon the exercise of the right to worship Grod according to the dictates of conscience, or on the right of trial by jury ? They stand on no higher or other grounds than do the rights of an elector. If the one may be taxed may not the other ? It would shock the sense of the entire community to think of such a thing *101as a tax on religious exercises, and yet the principle is the same. I regard this tax as palpably in conflict with the Bill of Rights. Nor can it be omitted from the system -on which it is engrafted, for it is too deeply rooted in it to allow of its excision without destroying the whole.
There is another feature, that my brother Sharswood has shown, beyond cavil, to conflict with the Constitution. That is the last period fixed by the act for assessments in Philadelphia. Some years it will be twenty-three days between the 20th of September and the second Tuesday of October, and never less than seventeen. The Constitution fixes the outside limit ten days before the election. The tax must be assessed at least ten days before the election, says the Constitution. It shall not be, says the act. Which shall prevail; or, in the face of the decision pronounced, I ought rather to ask, which ought- to prevail ? Can any one hesitate to answer ?
A reason is given for sustaining this law, which to me is novel indeed, and directly overrules what this court determined last year, in the registry case then before us, viz.: that the repealing clause will stand, and all election laws we have will be repealed, if the act in question be held to be invalid. The repealing clause only has effect if the act to which it belongs be valid. It is predicated of the validity of the substituted provisions. I will not argue a proposition so self-evident. Wherever it is parcel of a substituted act, it lives or dies with the body of which it is part.
But I forbear further remarks. This opinion is far too long. It is written in the sole hope that the people will vindicate their Constitution in due time; if not, conviction of duty must be my apology for the length of it, as it has been my support in the labor necessary to produce it. I am of opinion that the decree made at Nisi Prius in this case ought to be affirmed, and the appeal dismissed.