delivered the opinion of the court.
Morgan brought this action against Dudley for denying him the privilege of voting, at the last August election; in the city of Lexington, at the election precinct in which he resided. He alleged, in his petition, that he was a free white male, above the age of twenty-one years, and had, previous to his application to vote, continuously resided one year next preceding the election in that election precinct in the city of Lexington; and had, on the 24th of July, 1857, been naturalized under the act of congress, by the city court of Lexington; all of which was proven to the satisfaction of the judges and the defendant. That the judges differed in opinion as to the plaintiff’s right to vote, and the duty devolved upon the defendant, as sheriff, to decide whether he had a right to vote or not, and that the defendant, "knowingly ‘ and willfully, with the intention unlawfully to de- ‘ prive said plaintiff of his right to vote, refused to ‘ receive his vote, and thereby unlawfully prevented ‘ him from voting.”
The defendant filed a demurrer to the plaintiff’s petition, assigning for cause—
1. That the petition did not allege facts sufficient to constitute a cause of action.
2. The Lexington city court had no authority to hear applications for, and grant certificates of, naturalization.
3. That the residence of the plaintiff, since he was ¡naturalized, was not sufficient to entitle him to vote.
The circuit court sustained the,dem.urrer, and rendered a judgment against the plaintiff, from which judgment he has appealed to this court.
Can an action be maintained against the judges of an election, or the sheriff when he acts as umpire between them, for deciding erroneously, that a person offering to vote is not a legal or qualified Aroter? This is the first inquiiy that naturally arises in this case, for unless such an action can be maintained the other questions that have been discussed so much
Whilst it is admitted to be essential to the just rights of electors and also of candidates, that the right of suffrage should be freely exercised by the qualified voter, it is equally essential that those who are called by their official duty to preside at elections, and to decide on the qualifications of voters, should be sustained and encouraged, in the faithful and conscientious discharge of their duty.
No action ought then, in principle, to be maintainable, against the judges of an election, whose functions are to some extent judicial, for refusing to receive a vote, without alleging and proving that in so acting they were influenced by bad motives, and decided contrary to their own honest convictions of what was right and proper.
A different rule seems to prevail in the state of Massachusetts, and it has been there settled, in a series of decisions, that an action can be maintained
This rule seems to have been adopted from an anxious desire to protect and secure the right of suffrage, aright which is invaluable and secured by the constitution; but it should be remembered, that whilst it is essential to the proper operation of the true principles of a representative government that no unnecessary obstructions be thrown in the way of the exercise of the right of suffrage by the qualified voter, it is equally necessary, for the attainment of-the same end, that the public officers should be protected and sustained, in denying this right to such unqualified persons as may attempt its usurpation.
The judges of an election, as well as the sheriff in deciding between them when they disagree, act judicially in passing upon the qualifications of a voter. And it is well settled, that no action can be supported against any person acting judicially, within the limits of his jurisdiction, though he should act illegally or erroneously, unless he has acted from impure or corrupt motives. (Gregory vs. Brown, 4 Bibb, 28.) The harmony and analogies of the law will therefore be best preserved by adhering to the general principle, which seems to have been adopted in such cases in England, and in most of the states of this union.
We are of opinion, therefore, that an action can be maintained against the judges of an election, and the sheriff when he acts in the capacity of a judge, for refusing to permit a qualified voter to exercise the right of suffrage; but to sustain the action it is necessary to allege and prove, that the defendant, in deciding that the plaintiff was not entitled to vote, did not act according to his honest conviction of his duty, and of the legal rights of the plaintiff, but act
The power of state courts, to naturalize aliens, in the mode prescribed by the acts of congress, is the next question that we are called upon to discuss and consider.
The constitution of the United States, (article 1, section 8,) gives to congress the power “to establish an uniform rule of naturalization.”
The act of congress of 1802, passed in virtue of this power, and entitled, “an act to establish an uni- ‘ form rule of naturalization, and to repeal the acts ‘ heretofore passed on the subject,” designates certain state courts, by which, as well as by the federal courts’, the power of admitting foreigners to citizenship may be exercised. The 3rd section of the same act, to render certain what state courts were referred to, expressly enacts, “That every court of record ‘ in any individual state, having common law juris- ‘ diction, and a seal and clerk or prothonotary, shall ‘ be considered as a district court, within the mean- ‘ ing of this act; and every alien who may have been ‘ naturalized in any such court shall enjoy, from and ' after the passage of the act, the same rights and ‘ privileges as if he had been naturalized in a dis-1 trict or circuit court of the United States.”
It is not controverted that the process of naturalization, in the mode it is required to be performed by
The conclusion that seems to be warranted by all the decisions on the subject is, that in judicial mat
Any court of record, having common law jurisdiction, is fully adequate to the performance of every thing required to be done, in the process of naturalization, as prescribed by the act of congress. Such a court can swear witnesses, and determine whether the applicant has resided within the United States five years, and during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same, and then administer to him the oath of allegiance and naturalization; and being a court of record, it can require all the proceedings to be duly recorded. The act of congress expressly declares that every alien thus naturalized shall be a citizen of
But as before remarked, such state tribunals as are designated by the act of congress have an original and inherent jurisdiction, fully adequate to the performance of every act required in the process of
Kent, in his Commentaries, (vol. 1, side page 397,) says: “State courts may, in the exercise of their ordinary, original and rightful jurisdiction, inciden1 tally take cognizance of cases arising under the ‘ constitution, the laws, and treaties of the United ‘ States.” This is the true principle upon which the jurisdiction is exercised; not upon the ground of a judicial authority conferred as such, by a law of the United States, but as the ordinary jurisdiction of the state court. Upon this principle it was decided by the supreme court of Massachusetts, in the case of Ward vs. Jenkins and, others, (10 Metcalfe, 583,) which was a suit by the assignee of a bankrupt, under the United States bankrupt act of 1841, that if a case foe within the ordinary jurisdiction of a state court, the court may- take cognizance of it, though the cause of action arises under rights acquired by a statute of the United States. And upon the same principle, the supreme court of Alabama, in the case of Giller vs. Herndon, decided that the state courts had cognizance, concurrently with the federal courts, of cases of fraud in a bankrupt’s discharge under the act of congress. The same principle was recognized in the case of Wallace vs. McConnell, (13 Peters’ U. S. R. 136,) in which it was held that an attachment commenced and conducted to a conclusion in a state court, before the institution of a suit against the debtor in a federal court, was a good defense to the action. And the jurisdiction of our own state courts, concurrently with the federal courts, of cases of fraud in a bankrupt’s discharge, has been frequently recognized in this court, and was never doubted. All these cases were regarded as being embraced by the ordinary jurisdiction of the state courts, and were taken cognizance of by them for that reason. As this ordinary jurisdiction is sufficient to enable the state courts to decide controver
But it seems to us that this question ought now to be considered as settled, even if it were much more doubtful than it is, after the power has been exercised by the state courts, without objection, for more than half a century. We have not heard of, nor have we been referred to, a single decision prior to the present one, in which it was adjudged by any court that the power could not be rightfully exercised. This universal acquiescence in its exercise for so long a period of time, is a potent argument in favor of the conclusion, that the jurisdiction assumed by the state courts is rightful, and not a mere usurpation of illegal power.
This jurisdiction, however, has not only been exercised for so long a period without objection, but its legality has been repeatedly recognized and treated as if it were unquestionable. In the cases of Campbell vs. Garden and wife, (6 Crunch’s Rep. 176.) and of Starke vs. Chesapeake In. Co. (7 Crunch, 420,) persons naturalized by state courts were adjudged to be citizens of the United States. No question was made in either case as to the power of the state courts, to naturalize; that seems to have been conceded, not however as is supposed on the ground of an antecedent jurisdiction, for there was nothing in either case which showed the existence of any such jurisdiction, it must therefore have been, on the ground that their ordinary and inherent powers, as courts of common law jurisdiction, were deemed sufficient to enable them to perform the act.
The jurisdiction of state courts, in such cases, was tacitly recognized in the state of Virginia in the
We do not, as it will be perceived, place the jurisdiction of the state courts on the ground that it. has been conferred by the act of congress, although Mr. Justice Story, in delivering the opinion of the supreme court of the United States in the case of Prig,^ vs. The Commonwealth of Pennsylvania, (16 Peters, 622,) says, with respect to the right of congress to confer power on.the state authorities:.
“As to the authority so conferred upon state mag- * istrates, whilst a difference of opinion has existed * and may still exist on the point in different states, ‘ whether state magistrates are hound to act under it, ‘ none is entertained by this court, that state magis- ‘ trates may, if they chose, exercise that authority ‘ unless prohibited by state legislation.” The authority referred to is evidently that conferred by the United States, for if it were that emanating from, the states themselves no question could have arisen, whether state magistrates are hound to act under it,
Nor do we place the validity of the act of natuj’alization by state courts on the ground that congress having exclusive power over the whole subject, can therefore make it valid as a naturalization act, and thus confer citizenship upon a foreigner, whether such courts have jurisdiction to act judicially over the subject matter or not, although vei-y forcible arguments, deduced from both principle and authority, have been urged in favor of both of these positions.
But we place it upon the broad ground, that such state courts as are designated in the act of Congress have an ordinary inherent jurisdiction, under the common law in force in the states, by which they are created, and incident to their very nature and organization, as coux-ts of common law jurisdiction, which enables them to perform judicially the process of naturalization in the mode prescribed by law, and that having been authorized by congress to act judicially on the subject, their acts are as valid as if they were performed by one of the courts of the United States.
The Lexington city court is erected by the act which incorporated the city. It is a court of record, has a clerk and seal, and is vested with limited common law jurisdiction. The act of congress, in designating the state courts that have authority to admit aliens -to become citizens of the United States, does not describe them as courts of general common law jurisdiction, but as courts having common law jurisdiction, and consequently embracing all that has either limited or general common law jurisdiction. If a court have no common law jurisdiction it is not embraced by the act, but if it have common law juris
The third ground of demurrer involves the construction of the eighth section of the second article of the state constitution, which prescribes the qualifications of electors. On the part of the plaintiff it is contended, that his residence in the county of Fayette for two years preceding the election, although he was not naturalized until a short time prior thereto, entitled him to a vote. And on the other side it is contended, that according to the true interpretation and meaning of the constitution, his residence should have continued that length of time after he became a citizen.
The section referred to reads as follows, viz: “Ev4 ery free white male citizen, of the age of twenty-4 one years, who has resided in the state two years, 4 or in the county, town or city, in which he offers to 4 vote, one year next preceding the election, shall be 4 a voter, but such voter shall have been, for sixty ‘"days next preceding the election, a resident of the 4 precinct in which he offers to vote, and he shall vote 4 in said precinct, and not elsewhere.”
The object of this section is to prescribe and define the qualifications of a voter. He is the pei’son to wffiom alone it. refers. To entitle him to a vote he must be a free white male citizen, of the age of twenty-one years; he must have resided in the state two years, or in the county, town, or city, in which hB offers to vote, one year next preceding the election. The residence of the person referred to, for the time prescribed, is what is required. It is not said that his residence shall be as a citizen, or in that character, or that it shall be continued any length of time after he becomes a citizen.
But it is argued that according to the language used, it is only the citizen, who has resided the timé
The term citizen is manifestly used in this section, as descriptive of the person who is entitled to vote, and not to designate the nature or character of his residence. If the expression “-who has resided” applies to the citizen as such, and requires a residence by him <2.9 a citizen, why does it not also apply to the whole of the preceding part of the sentence? It would then read, when thus construed, that every free white male citizen, of the age of twentj'-one years, who, as such—that is. as a citizen of the age aforesaid—has resided the time mentioned, shall be a vqter. It would seem, to apply as well to the age as to the citizenship of the person referred to, and the language used will not justify the makirig of any distinction between them. One of thé consequences therefore of the construction contended for, when fully carried out, would be to exclude ^11 persons from the polls, who have attained the ffge of twenty-one, until their residence shall be subsequently continued the length of time required by the section—■ a consequence never contemplated nor intended by the framers of the constitution.
The plain and literal signification of this part of . . . . . , the constitution is, in our opinion, entirely consistent
If any doubt could exist as to its true meaning there are some considerations which it seems to us must effectually silence and remove all doubt upon the subject.
The former constitution of this state, which was adopted on the 17th day of August, 1799, contained the following provision, viz:
“Every free male citizen,' (negroes, mulattoes, ‘ and Indians excepted,) who at the time being hath ‘attained to the age of twenty-one years, and resi- ‘ ded in the state two years, or the count}7 or town ‘ in which he offers to vote, one year next preceding ‘ the election, shall enjoy the right of an elector.”
It will be readily perceived that so far as the present question is concerned there is no substantial difference between this provision and the one on the same subject, which is contained in the new constitution.
The construction of this part of the former constitution was firmly settled by an uniform practice of half a century. The alien who had resided in the state the requisite time was permitted to vote immediately after he became a citizen. His right to do so was never questioned. It was universally conceded, and thus, by general concurrence, the trap meaning of the language used in the constitution, in relation to the qualification of electors, was clearly and unequivocally defined. ' The practice referred to constitutes a part of the history of the state, and
The framers of the new constitution must be presumed to have known what construction this part of the former constitution had received, and when they adopted the same provision, substantially, as a part of the new constitution, they must have intended that it should have the same meaning and operation which it had under the former. This conclusion would seem to be irresistible, for if any alteration had been desired or contemplated by them, on this subject, they would have made such a change iri the language they used as would have clearly indicated such an intention. Their omission to do this removes all doubt on this point, and conclusively demonstrates that their intention was, by retaining the same language which was used in the former constitution, to adhere to the practice which had so long and uniformly prevailed under it.
It is a well established rule of construction, the wisdom of which has been justified by experience, that when the meaning of any one provision of an Instrument is obscure, uncertain, or ambiguous, other parts of the same instrument may be resorted to, for its illustration, and for the purpose of explaining the ambiguity. If, then, the meaning of the section of the constitution in question were doubtful, we find other provisions in the same instrument, on kin
The constitution in prescribing the qualifications of members of the house of representatives, of senators, and even of the governor of the state, only requires that they shall be citizens of the United States at the time of their election. In other respects they are required to have higher qualifications than the electors. Would it not be a singular anomaly in the organization of a government, if the voter should not be qualified to exercise the right of suffrage, and yet would be qualified to be a member of the legislature, a senator, or the governor of the commonwealth? Can it be supposed, that the framers of the constitution intended to' bring about such a result? Should not such a construction, therefore, be put upon the language used, in defining the qualifications of a voter, as would avoid such an absurdity? Does not the language used in prescribing the qualifications of the persons to be elected, which is clear and explicit, and only requires that they shall be citizens of the United States, at the time they are elected, remove all doubt as to the true meaning of the language which prescribes a similar qualification, on the part of the electors?
The construction wre put upon this part of the constitution is therefore sustained by that which was given to a similar clause in the former constitution, and universally acquiesced in as being correct, as well as by the analogies which exist between this and other parts of the same instrument, and the reasons and conclusions deducible therefrom.
We are therefore unanimously of the opinion, upon the questions arising upon the demurrer, that the law was for the plaintiff, and that the circuit court erred in rendering a judgment for the defendant.
Wherefore, the judgment is reversed, and cause remanded with directions to overrule the demurrer