Purnell v. Mann

Dissenting opinion by

Judge DuRelle.

In a dissenting opinion filed in the case of Sinking Fund Commissioners v. George, etc., decided June 23, 1898, I stated a few of my objections to the act establishing a Board of Prison Commissioners, and more especially my objections based upon the ground that the act was inherently vicious, as an invasion by the Legislature of the powe.rs of the Executive.

It is unnecessary here to go into the history of the constitutional provision, which I think has been violated by this act. That provision was drawn by Mr. Jefferson, with the provision of the Federal Constitution before him, and was designed by him as an improvement upon the provision therein contained, to insure a more perfect separation of the powers and privileges of- the three' great departments of government than was secured by that instrument. Knowing its purpose and its author, the fathers of the Kentucky Constitution adopted that provision, and it has remained unchanged in each successive Constitution adopt*112ed by this Commonwealth, except that the present Constitution requires that each of the departments of the powers of the government shall be “confined to” a separate body of magistracy, instead of “confided to,” as in the previous instruments, indicating, if possible, a more earnest desire on the part of the framers, for a complete separation of the powers assigned to each body of magistracy. The provision is as follows:

“Sec. 27. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
“Sec. 28. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

The Constitution of the United States provides only that “all legislative powers herein granted shall be vested in a Congress of the United States,” with similar provisions as to the vesting of judicial and executive powers in the judiciary and the President, respectively. But it contains no inhibition against one of the departments exercising powers properly belonging to another, such as is contained in the Kentucky Constitution.

The reasons which seemed to me sufficient to justify us in holding the act creating the Board of Prison Commissioners unconstitutional apply with even greater force in the case at bar; for, in the former case, it could be argued with at least some show of plausibility that the Prison Commissioners were legislative agents. There is no pretext for holding the offices created by the act now under *113consideration to be agencies. They are offices, and so conceded to be.

In City of Louisville v. Wilson (99 Ky. 598) [36 S. W., 944] Chief Justice Lewis thus defined an officer: “There are Various tests by which to determine who are officers in the meaning of the law; but at last, in case of uncertainty, the intention of the law-makers controls. To constitute an officer, it does not seem to be material whether his term be for a .period fixed by law, or endure at the will of the creating power; but if an individual be invested with some portion of the functions of the government, to be exercised for the benefit of the public, he is a public officer.”

There can be absolutely no doubt that the appointees under this act are officers within the meafiing of the Constitution. If so, can they be appointed or elected by the Legislature?

It has been held by this court, through Chief Justice Robertson, that appointment to office is “intrinsically executive.” In Taylor v. Commonwealth (3 J. J. Mar., 401), that great judge said:

“And, although the Constitution has confided to the courts the appointment of their own clerks, still, tha nature of the power is not changed. It is essentially executive, whensoever, or by whomsoever, it may be exercised. It is as much executive when exercised by the court as by the Governor. It is the prerogative of appointing to office, and is of the same nature, whether it belonged to a court or to the Governor.”

The Constitution in force at the time this opinion was rendered authorized the court to appoint its own clerk.

This doctrine was approved by Chief Justice Ewing in Justices v. Harcourt (4 B. M., 500). Said the court: “But *114this power is an executive, and not a judicial power. It appertains to, and is exercised in aid of, the appointing power, which is executive, and not judicial.” It was approved in an opinion by Judge Marshall, in Gorham v. Luckett (6 B. M., 159). It was again approved in an opinion by Judge Williams, in Applegate v. Applegate (4 Met., 237). It has never, so far as I have been able to ascertain, been disapproved. It has been quoted and followed upon this question in Connecticut (State ex rel Coogan v. Barbour, 53 Conn., 85), and by other courts of last resort. But this opinion by one of the ablest — if not the ablest — of the judges who ever sat upon this bench, whose opinions are quoted with deference by the Supreme Court of the United States and the courts of every State of the Union, is overruled in the Prison Commissioners’ case and in this case, without even the poor compliment of a reference.

By section 29 of the Constitution, the “legislative power” is Arested in a House of Representatives and a Senate, together styled the General Assembly. The Legislature being by this grant vested with all the legislative power, may do everything that can properly be done ly the enactment of a law, and in addition thereto may do everything that by the Constitution it is expressly directed or permitted to do. Each House may perform the executive act of electing its own officers (secs. 34 and 249); and may perform the judicial acts of judging of the qualifications, elections and returns of its members (sec. 38), punishing disorderly behavior and expelling members (sec. 39). The framers of the Constitution having deemed it necessary to expressly permit the Legislature to exercise the executive power of appointment in specified cases, this permission, by implication, forbids the Legislature to exercise such power in any other case.

*115The creation of an office is accomplished by the exercise of legislative power. It is done by the enactment of a law. The filling of it — when not exercised by the people, or in some manner directed or permitted by the Constitution— is executive, and must be performed by an executive officer.

The Congress of the United States, deriving its authority from a Constitution which does not contain the inhibition of section 28 of the Kentucky Constitution, has never passed an act which created an office and, at the same time, filled it. Only once has it attempted to do so.

It is not denied that the legislative department can appoint or elect an officer, when the duties of the office appertain to that department. And in this is found whatever justification exists for the Legislature’s election of the State Librarian — an office which, without any violent stretch of construction, may be considered as appertaining to the legislative department.

But, while the three commissioners provided for in this act are both executive and judicial officers, they are not in any sense legislative. They perform executive functions in appointing to and removing from office, and in canvassing the returns; and judicial functions in deciding contests. But they perform no legislative functionsi; nor could the Legislature delegate such power. The Legislature has no more power, in my opinion, to elect or appoint such officers than it has to enact a law providing what judgment shall be entered in a pending litigation, or than the courts would have to call out the militia.

In State v. Kenton (7 Ohio, 547), it was said: "The official or unofficial character of the officers is to be determined * * * by the nature of the functions devolving upon them. * * * To prescribe the manner of election or appointment to office is an ordinary legislative function; *116to make an appointment is an administrative function.” The Ohio Constitution forbids the exercise of the appointing power by the Legislature, but the court is here discussing the nature of the function.

In Langenberg v. Decker (13 Ind., 478), and the Indiana Constitution contains a provision like ours — it was said:

“The powers of these departments are not merely equal, they are exclusive in respect to the duties assigned to each, and they are absolutely independent of each other. The .encroachment of one upon the other is watched with jealous care, and is generally promptly resisted, for the observance of this division is essential to the maintenance of a republican form of government. * ® * It can not be contended that the State Board of Tax Commissioners belongs to the legislative department. ® * * It can not be successfully maintained that the Legislature could confer upon the governor and the principal officers of the State duties pertaining to the judicial department. As the State Board of Tax Commissioners is neither a legisla' tive body nor a court, it must belong to the executive and administrative department. That it - does -belong to that department we think is too plain for argument. It is charged with executing certain provisions of the revenue law, and when it has performed that duty its function is ended.”

In Evansville v. State (118 Ind., 426), the court said: “The power to appoint to office is an executive function, and while the legislative may provide by law for the appointment of all officers not provided for in the Constitution, the appointing power must be lodged somewhere within the executive department of the government.” (And see State v. Denny, Ib., 382; Evansville v. State, 426; State v. Denny, 449; and State v. Hyde, 121 Ind., 20.)

*117In the case of Supervisor of Election (114 Mass., 251), the Legislature had conferred upon the Supreme Court the power of appointment of supervisors, and that court held the_ act unconstitutional, and refused to exercise the power, saying:

“These supervisors, although intrusted with a certain discretion in the performance of their duties, are strictly executive officers. * * * Their duties relate to no judicial suit or proceeding, but solely to the exercise by cith zens of political rights and privileges. We are unanimously of opinion that the power of appointing such officers can not be conferred upon the justices of this court without violating the Constitution of this Commonwealth. We can not exercise this power as judges, because it is not a judicial function.”

In Jones v. Perry (10 Yerger (Tenn.), 59), [30 Am. Dec., 430], the court said:

“The whole judicial power of the State being expressly invested in the courts by the Constitution, the exercise ,of it by the Legislature transcends the power intrusted to it by the Constitution, and can not be legally carried into effect.”

In 37 Fed. Rep., 648, under the Federal Constitution, which contained no such inhibition as that contained in our organic law, it was held that the Pension Bureau was not a court, and no officer thereof could be invested with judicial functions; that Congress, therefore, could not authorize the attendance of a witness before a pension examiner to be compelled by the district court.

So in Kilbourne v. Thompson (103 U. S., 168), it was held that Congress could not punish as for contempt a witness who refused to testify concerning transactions of persons whose conduct was then under investigation by a judicial *118tribunal, because that was an encroachment upon the judicial department.

In-Field v. Clark (143 U. S., 692), it was s'aid: “Congress can not under the Constitution delegate its legislative power to the President.”

In Cooley’s Constitutional Limitations (p. 104) it is said, speaking of the legislative department:

“But the apportionment to this department of legislative powers does not sanction the exercise of executive or judicial functions, except in those pases warranted by parliamentary usage, where they are incidental, necessary or proper to the exercise of legislative authority, or where the Constitution itself, in specified cases, may expressly permit it.”

And on page 108 he says: “The legislative power we understand to be the authority under the Constitution to make laws, and to alter and repeal them;” and quotes from Chief Justice Marshall: “The difference between the departments undoubtedly is that the legislative makes, the executive executes, and the judiciary construes the law.”

There are, it is true, cases in other States in which a different view is taken of this question. In many of them the question presented may readily be distinguished from that presented for decision by this court. For example, the Maryland case (Baltimore v. Police Board, 15 Md., 376), [74 Am. Dec., 572], arose under a constitutional provision) which provided merely that “the legislative and executive and judicial powers of government ought to be forever separate and distinct from each other” — a provision containing no express inhibition, but merely a declaration as to what was proper. And in Oregon, from which State a case is cited (Biggs v. McBride, 17 Ore., 640), the decisions of the court are directly contrary to the view expressed by *119Chief Justice Robertson, that the power of appointment to office is “intrinsically executive.” But in this State it may be asserted that the trend of judicial opinion has, wherever the question has arisen, been uniformly against the position taken by the majority opinion. So also has the spirit of -each successive change in the organic law of the Commonwealth been in the direction of more strictly limiting the legislative power. In fact, the changes in the organic law would lead us to the conclusion that there existed in the minds of the people a deep-seated distrust of legislative methods, and a fear of legislative usurpation of power.

Section 59 of the present Constitution, as to local and special legislation, is an illustration of this. In that section, twenty-eight subjects are enumerated in regard to which local or special acts are forbidden to be passed by the General Assembly; and in the twenty-ninth clause it is provided: “In all other cases where a general law can be made applicable, no special law shall be enacted.”

To show the tendency and policy of the Kentucky court upon this subject, the case of City of Louisville v. Cochran (82 Ky., 15), may be cited. There the General Assembly had passed an act with relation to back taxes in the city of Louisville, which prescribed the form of the petition to recover them, that only certain defenses should be allowed by the court, that all affirmative allegations of the answer should be held controverted, and the tax-bills be evidence of every fact necessary to entitle the city to recover. The act was held to be unconstitutional and void. The opinion by Chief Justice Hargis admitted that the Legislature might by law make the production of certain documents prima facie evidence of certain facts, but held that it could not dispense witlq allegation of essential facts necessary to *120the statement of the cause of action, or exclude a defendant “from showing the truth by a mere legislative declaration to that effect.”

And the court continued, quoting from Mr. Webster: “If .such results as this act seeks to accomplish could be reached by the methods it prescribes, ‘it would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form and idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country.’ ”

In Johnson v. Ferrell (8 R., 218), the Cochran case was approved of and followed in an opinion by Chief Justice Pryor.

In Slaughter v. City of Louisville (89 Ky., 123), this court, in an opinion by Judge Bennett, recognizing the binding force of the constitutional provision, interfered to prevent an encroachment by the Legislature upon the power of the executive. In that case the inquiry was, “Can the Legislature, in order to authorize the collection of ad valorem taxes, fix the valuation upon the property to be assessed?” Said the court:

“It seems to be well settled that the Legislature, as the law-making department of the State government, has no constitutional power to fix the valuation of property which is to be taxed upon ad valorem principles. The reason for this rule is, that the legislative department has no judicial, executive or ministerial powers, and as the valuation in this State belongs to the ministerial powers, of government it follows that the Legislature has no constitutional power to make the valuation.” ***“*** the *121Legislature having no judicial, executive or ministerial power, can not make the valuation; but the valuation must be made by some person authorized to exercise in this State-ministerial power, and such person is the assessor.” (Citing People v. Hastings, 29 Cal., 452, and People v. S. F. Savings Union, 31 Cal., 138.)

And in Morgan v. Vance (4 Bush, 323) it was held that the Legislature could not by statute remove the disabilities incurred by dueling, that power belonging to the executive.

An apparent exception to the rule is found in the case of the county courts. That arose, and is justified, in this way: Prior to 1792, when Kentucky formed a part of the territory of Virginia, the county courts of that State were not only courts of justice, but were clothed with executive and fiscal duties, and, from the time Kentucky became a State, had continued to exercise those powers and perform those duties. And so in Pennington v. Wool-folk (79 Ky., 13), Chief Justice Cofer concluded from this unbroken practice of nearly eighty years, uniformly acquiesced in by all the departments of the government, during which period the Constitution had been twice amended and re-adopted, that “the convention must be presumed to have been well acquainted with the fact that these nonjudicial powers had been conferred by various acts, and were being exercised by the county courts, and the re-adoption of the first article in the very words of the former Constitution, was a virtual recognition of the validity of the statutes by which these powers have been, from time to time conferred;” and that “the county court must be regarded, as respects a number of. matters local and exceptional in their nature, as excepted out of these provisions of the Constitution.” The present Constitution *122legitimizes this exception, and confers upon the county courts administrative functions (secs. 141 and láá).

But this court has never, until the case of Sinking Fund Commissioners v. George and this case, overlooked an encroachment by the Legislature upon the functions of either the executive or judicial departments.

Says Mr. Cooley (Const. Lim., page 105): “Every positive direction in the Constitution contains an implication against anything contrary to it which would frustrate or disappoint the purpose of the provision.” And again (page 78): “When the Constitution defines the circumstances under which a right may be exercised, * * * the specification is an implied prohibition against legislative interference to add to the condition.” Now, by section 153 it is declared that, “except as otherwise herein expressly provided, the General Assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections,” etc. It seems to me clear that, in a grant of power to provide for the manner of voting, the framers of the Constitution and the citizens whese votes gave that instrument vigor as organic law could not have dreamed that they were conferring upon the Legislature itself the power of electing to office. The grant of this power, it seems to me, directly implies a negation of the power of the legislators themselves to do the voting, the manner of which they are authorized to provide for. But if the Constitution did so authorize them, have they followed the behest of the general law providing for the manner of voting? Is it pretended that, in this case, election officers were appointed by the county court, or that the members of the Senate and House of Representatives voted by the secret Australlian ballot? The record shows the contrary. And the contention that *123election by the Legislature is impliedly prohibited is strengthened when we examine section 152, providing for vacancies in election offices arising during a term. In all cases the office is to be filled by appointment, but the term for which the appointment may be made varies according to the length of time to elapse before the next annual election, referring clearly to the election at which, under section 153, the General Assembly has the power to provide by general law for the manner of -voting, etc. Under this section (152), how are vacancies in these offices to be filled? The act is claimed to be in compliance with section 153, in that it provides that the Legislature shall elect the commissioners. The act provides that vacancies “shall be filled by appointment by the remaining member or members of said board,” but section 152 provides that “vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor.” Surely this provision of the law is unconstitutional, as the commissioners are undoubtedly officers for the State at large. The Constitution must control, and the Governor’s appointee must hold, not until the next session of the Legislature, but, according to the explicit terms of section 152, until the next general election. And further, by section 148 it is provided that “not more than one election each year shall be held in this State, or in any city, town, district or county thereof, except as otherwise provided in this Constitution.” As the Legislature can not be in session at the time fixed for the annual election, —unless by special call of the Governor, — how can the Legislature, under this section of the Constitution, exercise the power which it has usurped? The answer is, that the Constitution did not contemplate that any officers, except those specially provided for, should be elected by *124the Legislature. Section 76 provides, that the Governor “shall have the power, except as otherwise provided in this Constitution, to fill vacancies,” etc. Nowhere except in section 152 is it “otherwise provided” how vacancies shall be filled. That section was intended to cover the whole ground, and, as- it provides that such appointments shall remain in force until the next general election, negatives the idea of an election by the Legislature. The Federal Constitution, which gives to the Legislature of the State the power to elect a United States Senator, and provides for appointment by the Governor to fill vacancies occurring during the recess of that body, provides for “temporary appointments until the next meeting of the Legislature.” Such an appointment (until the next meeting of the Legislature) of a State officer is not permitted under our Constitution to the Governor, who alone has power to fill a vacancy in a State office.

The General Assembly, wherever named in the Constitution, is either authorized or directed to “provide by law” (secs. 136 and 147), to make “provision by law” (sec. 185), or to “provide by appropriate legislation” (sec. 183), for the purposes authorized by the Constitution; or, it is forbidden to pass an act as to some designated subject (secs. 59, 60); or, its power is limited as to certain matters, such as the laying out of new counties, removing of county seats (secs. 63, 64), and as to the exercise of various other functions uniformly recognized as parts of the legislative power. From this it seems clear that the makers of the Constitution intended the Legislature to discuss and enact laws, and to do nothing else.

If the Legislature may provide for the election by itself of these officers, it undoubtedly may, under section 107, which authorizes it to “provide for the election or appoint*125ment for a term not exceeding four years of such, other county officers, or district, minsterial and executive officers, as may from time to time be necessary,” elect all of the 350 county commissioners provided for in this law, and every other appointive officer in the Commonwealth. “The exercise of such power would,” as said by the Governor in his veto message, “destroy the very object for which the legislative department was created.”

Legislative sessions are limited in duration to ■ a brief period. With a constantly increasing list of offices to be filled by that body, the time for the performance of legislative functions — for the discussion and enactment of laws— will be more and more encroached upon by the usurpation of administrative functions, and I look with dismay to the character of legislation we may expect under such circumstances.

It is not to be supposed for a moment that, in vesting the General Assembly with legislative power, it was imagined by the Convention or the people that that body, by the mere passage of a so-called act conferring upon itself powers which properly belonged to the other departments, could usurp their functions. If it can do so, then we do not live under a constitutional government, but the General Assembly, like the British Parliament, is supreme.

It was held in the George case, approved in the case at bar, that “the Legislature, unless inhibited by the Constitution” (and the opinion holds that there is no inhibition) “may exercise its power in either of the three modes: 1. It may by a statute create and name persons who are to fill it” (citing authorities); 2. It may by law create an office and provide that it shall be filled by election or appointment by the Legislature in joint convention assembled,” etc., etc.

*126It may be remarked here that, in this law, the election or appointment was not provided for by the Legislature to be done in joint convention assembled. If the first proposition —which is of course mere dictum — be true, then the twenty-ninth clause of section 59, “In all other cases where a general law can be made applicable, no special law can be enacted,” is a nullity; for the General Assembly could have provided that Judge Pryor and his two associates should, from and after a named date, be commissioners of election, which undoubtedly would have been a special law in a case where a general law could have been made applicable.

Moreover, this dictum is in direct conflict with the case of Clark v. Rogers (81 Ky., 44), in which, in an opinion by the chairman of the Board of Election Commissioners created by this act, it was held that the Legislature could not, without a local vote upon the question, when changing a town government by trustees into a city, continue the old trustees as councilmen under the new charter. Said Judge Pryor in that case:

“Under our elective system, by reason of the provision of the Constitution in regard to the election of officers for towns and cities, and other provisions of that instrument relating to State and county officers, the Legislature has no power to appoint to office, or to continue in office, such officers as by the provisions of the Constitution are made elective; and the attempt to exercise such a power by legislative enactment is in plain violation of its provisions. Section 10 of article 6 of the Constitution provides that “The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district, ministerial and executive officers as shall from time to time be necessary and proper;’ but officers required to be elected by the Constitution can not be *127appointed to or continued in office by legislative enactment, without consulting the popular will.”

This opinion clearly holds that, even under the third Constitution of this Commonwealth — far more loosely drawn in regard to restrictions upon the powers of the Legislature than the present Constitution — the Legislature, under a grant of power to provide for the election or appointment of an officer could not itself elect or appoint to the office, and this by virtue of a provision which is copied in section 107 of the present Constitution.

It seems to me further, that the resolution to meet in joint assembly, for the purpose of electing these commissioners, was an “order, resolution or vote,” within the meaning of section 89 of the Constitution, which requires that “every order, resolution or vote in which the concurrence of both Houses may be necessary, except on a question of adjournment, or as otherwise provided in this Constitution, shall be presented to the Governor, and, before it shall take effect, be approved by him,” etc., etc., and that the meeting of the Houses in joint assembly was, therefore, unauthorized and ineffectual. A meeting in joint assembly might have been provided for in the act itself, but this was not done. Not being done, the resolution to meet in joint assembly was an addition to the law providing the means of its being put in operation, and should have been submitted to the Governor.

But I do not care to take time in discussion of this and a number of other objections which have been urged to the act. By far the most serious and weighty objections to the act, it seems to me, are its legislative usurpation of executive power and function; its invasion of the right to free and equal elections, guaranteed by section 6 of our Bill of Rights, and its unwarrantable interference with *128the principle of local self-government. In the opinion— and (I say it with profound respect and loyal friendship for the judge who delivered it) the books contain no abler or more plausible defense of a vicious law. It is said: “It is true honest elections are necessary to obtain a fair expression of the will of the people. But can this court determine that an election law is unconstitutional and void for the sole reason it does not provide for selection of election officers of different political parties?” After stating that the three Constitutions prior to the present one contained similar provisions for free and equal elections, but that no statute requiring officers o'f election to be of different political parties was passed until 1858, the opinion continues: “So, if the argument of counsel be sound, there was not a valid election law in this State until sixty-six years after it was founded.” To me it appears that the right to free and equal elections, which is a right excepted out of the general powers of government, with a provision that it “shall forever remain inviolate,” and all laws contrary thereto, or contrary to this Constitution, shall be void — goes hand in hand with the principle of local self-government, uniformly recognized both in the Constitution and laws as a guiding principle in the government of the Commonwealth. No unprejudiced man can compare the former election law with the act under consideration, examine the changes which the latter makes in the time-honored requirement of direct responsibility to the local community of the officer appointing election officers, and consider the centralization of power provided for by the new act in the hands of a State Board of Election Commissioners selected by party caucus in the Legislature, belonging to the same political party, and invested with power to appoint the county boards and remove at any *129time, with or without cause, and to fill the vacancies thus made. No impartial man -can compare the two acts and believe that free and equal elections are anything like as possible under the new as under the old law.

Judge Cooley says: “All regulations of the election franchise however, 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 mtist be declared void.” This language has been approved by this court in City of Owensboro v. Hickman (90 Ky., 635); Cooley’s Con. Lim., 758; Capon v. Foster, (12 Pick., 483.)

This court, in Commonwealth v. McClelland (83 Ky., 688), said, commenting on this section of the Bill of Rights: “Elections are free and equal only when all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, and when the polls are in each county and in each precinct alike freed from interference or contamination of fraudulent voters,”

Nor is it an answer to this to say, as is said in the opinion of the majority: . “And if it be said the county board owes its existence to the State board, composed wholly of members of one political party, it may be answered the county judge is usually elected with reference to his party affiliation. But the truth is neither the old or the new law could or does fully accomplish the object of wholly divesting the appointment of election officers from party bias or influence; and it would be difficult to frame a law that would do so. It would, therefore, be futile for this court, even if the subject was within its proper sphere, to pro*130nounce a statute void because defective in that respect, when the law thereby revised is little, if any, less so.” With equal propriety it might be said that all Constitutions and statutes are finite, and that absolutely free and equal elections can be obtained only by the exercise of infinite power. That is true; but it may be replied that the Constitution does not contemplate divine impartiality, or absolute freedom and equality in elections. It was constructed, and should be construed, with regard to the limitations of human law. What was intended to be secured by this provision was the holding of elections as free and as equal as Imman law can malee them, This being so, it follows inevitably that any statute which is a distinct departure for the worse — which is less reasonable, uniform and impartial than the law before in force; which alters that law so as, and with the purpose directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise — is void, under section 6 of the Bill of Rights. Grant that,, under existing law, absolute freedom and equality in elections is impossible, still it is true that a law which makes freedom and equality therein more difficult of attainment than before its enactment comes within the inhibition of the section, and is unconstitutional and void.

It is said in the opinion that we may not “pronounce a statute unconstitutional and void because it may, in opinion of the court, be impolitic, unjust or oppressive, or because it appears to violate what might be deemed fundamental principles, or what is called the 'genius and spirit of our institutions.’ ” Fundamental principles, in this Commonwealth, are the principles of the Constitution. The genius and spirit of our institutions is the genius and spirit of the Constitution. And in this view we may in*131quire whether a statute will work injustice or oppression in denying free and equal elections, or as free and equal elections as can be compassed by the enactments of finite man.

The field of inquiry presented by this case is so wide that I have not attempted to cover it. I have but attempted to outline my views upon the subject. The objections to the act upon the ground that it invades the right of free and equal elections have been barely indicated. Its provisions are so plainly and so unmistakably vicious that they may be seen of all men who will take the trouble to compare the two laws.

For the reasons stated, and others which lack of time prevents me from stating, I dissent from the opinion of the majority.

Judge Burnam concurs in this dissenting opinion.