On a motion for a rehearing, the counsel for the defendant, conceding that the inspectors had no discretion to receive votes except upon the exact conditions defined in the registry act, and that as to them the act is mandatory and penal in the highest degree, contended that it did not at all follow from this that a resident of the district constitutionally qualified to vote, and who has actually voted, should be punished by losing the vote so cast, because the board required no affidavit of him as it was their duty to do. Our statutes (R. S., ch. 109, secs. 6 and 11) forbid the solemnization of marriage without an examination of one of the parties under oath as to the legality of the same, and imposes a penalty of $500 upon any judge or minister, &c., who shall disregard this provision. Yet no one supposes that a marriage solemnized in disregard of the provision, between persons who were in fact competent to enter into the relation, would be void. King v. Birmingham, 8 Barn. & Cress., 35; Milford v. Worcester, 7 Mass., 54-55. In such cases, nothing short of an express enactment to that effect will enable the courts to declare the marriage void. The constitutional right of the citizen to vote is not to be taken away by implication. If the act had declared that the voter, who, not *574haying Ms name on the list, should yote without first producing an affidavit, &c., should be imprisoned, but had failed to declare that his vote should not be counted, the courts could not add this penalty to that fixed by the act. But the act does not punish the voter; it punishes only the officers who neglect their duty; and the consequence now contended for, that the vote shall be void, is not declared by it. Courts will not construe a statute so as to effect a penalty or forfeiture not therein declared. “ A penal law shall not be extended by construction. * * No man incurs a penalty unless the act which subjects him to it is clearly both within the spirit and the letter of the statute imposing such penalty.” Dwarris, p. 736; 3 Bing., 589; Smith’s Comm., 861; Jones v. Estis, 2 Johns., 379; U. S. v. Wiltberger, 5 Wheat., 76. It may be said that had the inspectors done their duty, they would have refused to receive these votes, and then the voters would equally have lost their votes. But, (1.) This would have resulted from the execution of the law itself; the forfeiture would have been within the letter as well as the spirit of the law. (2.) Had the inspectors done their duty, the voter might have furnished the requisite affidavit ; and it is a fraud upon him to receive his vote without objection, and when the opportunity to mate the objection is passed, then to reject the vote. (3.) The legislature may have refused to declare the vote void, because then the inspector might receive it illegally for the very purpose of having it cast out; knowing that if he made the objection, the voter could and would immediately supply the proof. (4.) The legislature may also have refused to declare the vote void, because of the difficulty, danger and temptation of perjury, from allowing parol evidence of the voter as to the candidate for whom his vote was cast, or the hardship of enabling a defeated candidate to compel voters to testify on that point. 2. The act, as construed by the court, is unconstitutional. Sec. 1, Art III of our constitution, declares that “ Every male person *575of the age of twenty-one years or upwards, * * who shall have resided in the state for one year next preceding any election, shall be deemed a qualified elector at such election.” Sec. 6 authorizes the legislature to exclude by statute from the right of suffrage all persons convicted of certain offenses, and to deprive persons interested in any wager depending on the result of an election, of the right to vote at such election; and these are the only cases in which the legislature is authorized to take away this right. In other cases it may regulate the exercise of this right; but such regulation, to be constitutional, must be reasonable in itself, and calculated to facilitate, not to impair, the exercise of the right. It follows that any neglect of the provisions of the law regulating the exercise of this right constitutes a mere irregularity, and does not affect the right itself. If the voter has exercised a constitutional right, and has only done so in an irregular manner, or has disregarded some of the forms prescribed for its exercise, this will not work a forfeiture of the right itself. Hence it is held by all courts in America, as well as by parliament in England, and the congress of the United States, and all our state legislatures, that no matter how great may have been the irregularities attending an election, if the substantial end in view has been reached, if the legal voters have voted, the person who has received the highest number of votes is elected. But the court construes this act not as a mere regulation of the constitutional right, a violation of which would be a mere irregularity, but as going to the right itself — as prescribing qualifications for voters. It holds that by failing to furnish the affidavit the voter has forfeited the right to vote; that his vote is to be considered like one cast by a minor or non-resident of the state, wrongful in itself and wholly void; that he is deprived of the right to vote, under the act, as a “penalty” for his neglect to offer an affidavit, &c. But the legislature can neither change the qualifications of voters, nor exclude any elector from the right of *576suffrage except on. conviction of some of the offenses enumerated in sec. 6, art. III. As construed by the court, therefore, tbe act is clearly unconstitutional. 3. Counsel further contended, that whether construed as a regulation, or as imposing a penalty, the act was void in so far as it required an act which it was not in the power of the voter to perform. But this act requires the unregistered voter, before his oath can be received, to “ prove by the oath of a householder of the district * * that he knows such person to be an inhabitant of the district,” &c. Suppose a voter, who voted at the last election and therefore has a right to presume that his name is on the list, has been prevented by sickness or other unavoidable cause from appearing to have the list corrected, and presents himself to vote. He is a resident, and has all the other qualifications required ; but he must prove the fact by another — a householder of the district. This he has not the power to do. If he can find a householder who will volunteer to swear, the oath may be administered by the inspectors, &c. ; but if not, he is remed-iless. This is unreasonable as a regulation, and unjust as a penal statute. — The complaint does not allege that the persons who voted without giving the affidavit and oath, &c., were not prevented by sickness or other unavoidable accident from having the list corrected; does not show them to have wilfully neglected to comply with the law, which is of the essence of any crime or wrong to which a penalty could attach; nor does it show that they did not endeavor to induce householders to swear for them. The presumption is against the pleader; and the court is not to extend statutes by construction so as to work forfeitures not declared therein, and then presume the facts which will subject a citizen to such forfeiture.
The counsel for the complainant, in reply, contended that the argument from the validity of a marriage solemnized in violation of the statute was misleading, because, (1.) The marriage contract is sui generis, and is valid at common law with*577out any ceremony of solemnization, while tbe elective franchise is founded upon positive regulation only. (2.) Courts, for obvious reasons, go farther in upholding the validity of marriage contracts than of any other kind of contracts; and hold statutory provisions of the character referred to directory rather than mandatory. These reasons grow out of the nature and consequences of the marriage itself, and do not exist in reference to most other statutes, and certainly not in reference to the registry act. (3.) The statutory provision in relation to marriage prescribes a duty for the officer only, while the registry act requires certain acts to be done by the voter as a condition to the exercise of the right of suffrage. 2. As to the assumption that this'” is a penal statute, and the argument that such statutes are not to be extended by construction, (1.) The court has not extended it. They have simply enforced the provision that no vote shall be received except upon the prescribed conditions, and the conclusion inevitably resulting from it, that if the vote cannot be received, it cannot be counted. (2.) The statutory provision in -question is not penal. The language of the opinion, that the loss of his vote by one who does not comply with the statute, “ is in the nature of a penalty for his neglect,” is correct, but does not imply that this is a penal statute in the legal sense of that term. If a man attempts to devise real estate by a will, and neglects the legal formalities, the penalty is that he does not succeed. If a man, having a right to vote on complying with certain conditions, neglects to comply with them, the result or penalty is that he loses his vote. But in neither case is the statute prescribing the forms or conditions a penal statute. 3. The law is constitutional. It does not “ exclude any elector from the right of suffrage.” It does not “ prescribe any new qualifications for voters,” but only new formalities to be observed by those possessing the constitutional qualifications. State ex rel. Cothren v. Lean, 9 Wis., 283-4. The statute (not the constitution) requires *578that the elector shall vote in person ; that he shall vote only in the town or ward where he resides, and only at a particular place and on a particular day; and if (even from sickness or other unavoidable cause) he fails to be present in person, at the right time and place, he loses his vote. Will it be claimed that these provisions of statute create new qualifications, or that they deprive citizens of the right of suffrage? It is doubtful whether a court can pronounce acts of the legislature unconstitutional merely because they seem to it unreasonable; but there is nothing unreasonable in the provisions of the registry law. They are such as experience shows to be absolutely essential to the protection of the ballot box, and are similar to laws which have been held constitutional in other states. In some of them, as Massachusetts and New York, the voter was absolutely required to be registered on certain days; yet the act was valid. Capen v. Foster, 12 Pick., 485. The permission given the non-registered voter by our statute to deposit his vote on complying with certain requirements, need not have been given at all; and therefore the contingency suggested, of his inability to comply with one of those requirements, cannot render the statute unconstitutional. Besides, the contingency is too remote and improbable for serious consideration. It might with much more reason be urged, that it is unconstitutional to require the voter to appear in person at the polls, because if he is sick, so that he cannot get there, he loses his vote. Suppose the statute should require all ballots to be in writing: could any voter object to its validity on the ground that he could not write himself, and might not be able to get anybody to write his ballot for him ?
The motion for a rehearing was denied.