Opinion
Argued October 15, 1923
Decided October 16, 1923
George P. Nicholson, Corporation Counsel ( Russell Lord Tarbox and John F. O'Brien of counsel), for appellants.
Carl Sherman, Attorney-General ( Edward G. Griffin and Charles E. McManus of counsel), for appellants. Louis Marshall, amicus curiæ. Leonard M. Wallstein for respondent.
Before January 1, 1922, article 2, section 1, of the State Constitution defined the qualifications of voters as to citizenship, age and residence. By amendment by vote of the people at the general election in 1921, these words were added:
"After January 1, 1922, no person shall become entitled to vote by attaining majority, by naturalization or otherwise, unless such person is also able, except for physical disability, to read and write English; and suitable laws shall be passed by the Legislature to enforce this provision."
The legislature of 1922 thereupon provided (Election Law, L. 1922, ch. 588, § 166) first, by subdivision 1 of section 166, for a test of the ability of the voter to read and write English, to be made by the inspectors of election, by the use of extracts from the Constitution of the state, and secondly, by subdivision 2 of section 166, as an alternative, proof of the ability of the voter to read and write English to be made by a so-called school "certificate of literacy" which might, but need not, be accepted by the board of inspectors without the test provided for in subdivision 1.
In 1923 the legislature had before it a bill introduced by Assemblyman Steinberg, entitled "An act to amend the Election Law, in relation to literacy tests of voters." It amended six sections of the Election Law with one evident purpose as expressed in the title. The new matter in the bill was printed in italics and the matter in the old law to be omitted was inclosed in brackets. In section 90, relating to the distribution of ballots and supplies, these words were omitted: "For a district where registration is not required to be personal, card slips for literacy test shall be delivered with the other supplies for a general election." In section 155, relative to method of registration in election districts, outside of cities and villages of five thousand inhabitants or more, words providing for a notation by the inspectors on the registers to examine new voters on election day not known to be able to read and write English were stricken out. In section 163 the words "test or" in the phrase "test or proof prescribed by section 166," of ability to read and write English were stricken out. The entire section 166 was stricken out and a new section was provided which required proof of ability to read and write English to be established exclusively and conclusively as follows:
"§ 166. Proof of literacy and regulations. A certificate of literacy issued to a voter under the rules and regulations of the board of regents of the state of New York to the effect that the voter to whom it is issued is able to read and write English, or is able to read and write English save for physical disability only, and to the extent of such physical disability, which shall be stated in the certificate, shall be received by election inspectors as conclusive of such fact, except as hereinafter provided. But a new voter may present as evidence of literacy a certificate or diploma showing that he has completed the work of an approved eighth grade elementary school or of a higher school in which English is the language of instruction. But the genuineness of the certificate and the identity of the voter shall remain questions of fact to be established to the satisfaction of the election inspectors and subject to challenge, like any other fact relating to the qualification of a voter. The inability of a voter, save for physical disability only, obvious to the election inspectors to write his name in a register or poll book, shall be deemed conclusive proof of inability to read and write English, notwithstanding the presentation of proof of literacy as herein provided. Upon registering a voter after receiving proof of literacy, each inspector shall make a note upon his register in the registration remarks column, `proof of literacy presented.'"
In section 207 reference to the test of literacy was omitted.
This bill passed both houses of the legislature and became law (L. 1923, ch. 809) by signature of the governor on May 28, 1923. This statute, taken by itself, manifests in unmistakable terms the legislative intention to abolish the alternative test of literacy to be conducted by the boards of registration under the former section 166, and to substitute in place thereof the proof of literacy by certificate, as the sole and conclusive evidence of the constitutional requirement. This much is conceded by all parties. But the legislature in 1923 passed two other separate and disconnected bills amending the Election Law which were both signed by the governor and became law, along with the so-called Steinberg bill, on May 28, 1923, and it is argued that statutes taking effect at the same time, when similar in their nature and purpose, must if possible be construed together so that all will stand, and that the language of the two other statutes implies that the legislature did not intend to do away with the test of literacy which the board of registration was authorized to apply under section 166, subdivision 2, as it read prior to its implied repeal by the inconsistent provisions of the new section 166, as contained in Laws of 1923, chapter 809. We must, therefore, first pass upon a question of mere statutory construction to ascertain if both methods of determining literacy remain in force.
First we have a bill which added to section 166 as it was originally enacted a subdivision 3 which provides: "Upon registering a voter after administering such test or receiving such proof, each inspector shall make a note upon his register in the registration remarks column `Literacy test satisfactory' or `unsatisfactory' as the case may be." This bill became chapter 803, Laws 1923.
Next we have a bill which is entitled "An act to amend the Election Law, in relation to envelopes for enrollment blanks in the city of New York." Its sole purpose as appears on its face is to do away with enrollment envelopes. But it retains a provision of the Election Law of 1922, which says: "The board of elections of the city of New York and elsewhere of each county shall provide * * * the necessary card slips of extracts from the State Constitution to be used for literacy tests." This bill became chapter 810 of the Laws of 1923.
The three acts are not to be construed as inconsistent if they can fairly be read otherwise. The fact that they took effect on the same day is strong evidence that they were intended to stand together ( Com. v. Huntley, 156 Mass. 236, 239) if they can be reconciled, but it is not the duty of the court to reconcile the irreconcilable nor to raise by implication and inference to the dignity of a solemn pronouncement of the legislature what is clearly attributable, not to deliberate intention, but to inadvertence or carelessness. Standing alone or read in connection with the new section 166, chapter 803 is meaningless. It is referable only to the old section 166 and the amendments to section 166 deliberately cut out of that section all reference to a test by the inspectors. It cannot be harmonized with the new section except by ignoring the clear purpose of the cardinal amendment. In itself it provides for no test; it assumes that the test still exists when it no longer exists. The words "administering such test" read in connection with the new section 166 are surplusage and must be rejected as such. So also chapter 810 merely assumes that the test still exists. As appears by the title, the legislature had in mind a single purpose, i.e., to do away with enrollment envelopes. So far as it retains the provisions of the Election Law of 1922, relative to the cards to be used for tests, it is inconsistent with the substantive provisions of the new section 166. Procedural in its character, it relates to tests which have been abolished.
The facts connected with the passage of these three acts must be considered and the act which clearly expresses the mind of the legislature concerning the common subject to which they relate must be given controlling force. ( Lambert v. Bd. of Trustees, 151 Ky. 725; Am. Cas. 1915A, 180.) The common subject is the conduct of elections. The mind of the legislature was not clouded. Its purpose was to do away with the test of literacy by the inspectors and to substitute therefor the proof by certificate. The court should not seize upon inconsequential slips in the use of words to defeat that purpose. That which is of fundamental importance must control over minor inconsistencies. No sanction remains for literacy tests of new voters to be conducted by the inspectors of election.
The constitutionality of the statute as thus construed is challenged.
It is urged that the legislature was powerless to provide for intelligence tests; that legislation providing a new test of ability to read and write English is the constitutional limit of suitability; that section 166 as it now reads requires or permits proof of literacy and that literacy means a higher degree of education than mere ability to read and write English. But the statute contemplates no extraordinary educational test. Literacy as therein used is defined as and means ability to read and write English; nothing more.
It is further contended that section 166 deprives the election inspectors of a constitutional power vested in them under article 2, section 6, of the Constitution in that it vests in those not charged with the duty of registering voters or distributing ballots and receiving votes the absolute power and authority to make a determination, conclusive upon the election inspectors, of the possession by the new voter of the ability to read and write English. But the Constitution contains no express grant of general power to boards of election to determine for themselves the qualifications of voters nor is any implication of such power to be found therein. The purpose of article 2, section 6, is well understood. It is to guarantee equality of representation to the two majority political parties on all such boards and nothing more. The legislature may adopt a reasonable method of ascertaining a qualifying fact, designed to secure uniformity and impartiality. So long as it does not add to the qualifications required of electors by the Constitution the legislative will as to the evidence of such qualifications is supreme. ( People ex rel. Stapleton v. Bell, 119 N.Y. 175.) Reasonableness is a matter of practical conditions and we cannot fail to recognize that a test of literacy applied by each election board for itself not only imposes a heavy burden on the board but also affords opportunities for haste, inequality, favoritism or indifference which the legislature may properly undertake to prevent or minimize. ( Matter of Ahern v. Elder, 195 N.Y. 493.)
Nor can it be said that the legislature has delegated its powers improperly. It cannot be assumed that the examining authorities will impose unreasonable tests to ascertain the simple fact of ability to read and write English. Their functions are ministerial. The suitableness of the tests is not before us. No individual who has been prejudiced thereby is asserting a right to be registered. If the tests imposed are unsuitable, the examiners are without jurisdiction. As well might it be argued that the ability understandingly to read extracts from the Constitution is not a suitable test. Many an intelligent reader of that which interests him in the newspapers could not understandingly read portions of the Constitution, yet the suitableness of such a test is not questioned.
The legislature cannot administer the tests to the voters. It must delegate the power elsewhere. As well to the educational authorities of the state as to the inspectors of election, it would seem.
The law nowhere contemplates that the rules and regulations of the board of regents shall define what is meant by the ability to read and write English. Through its proper representatives, that board is to administer the law and determine the fact. It is to ascertain in each case whether the new voter has the constitutional qualification. If he comes under the precise terms of the Constitution nothing is left to the examiners but to furnish the necessary evidence of the fact. The rule against delegation of legislative power does not apply. ( People v. Klinck Packing Co., 214 N.Y. 121.) In any event, if the law is within the reasonable range of legislative discretion it must be upheld because the Constitution expressly empowers and requires the legislature to pass suitable laws to enforce the provisions in question and thus contains a grant of the widest possible legislative power consistent with the amendment itself.
The argument of inconvenience is not controlling. The requirement of personal registration is often an inconvenience, attended with expense, but the Constitution (Art. 2, § 4) for obvious reasons requires personal registration in cities and villages having five thousand inhabitants or more.
The order appealed from should be affirmed, without costs.
HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; HOGAN, J., dissents on ground that statute contravenes provisions of Constitution in that it deprives officers charged with registration of voters of power to determine qualifications of voters.
Order affirmed.