The State of Florida, ex rel. William B. Lamar, Attorney-General, Plaintiff, vs. Benjamin F. Dillon et al., Defendants, 32 Fla. 545

Mabry, J., after stating the facts. I. It is apparent from the foregoing statement that the invalidity of the municipal election held in the city of Jacksonville on the 18th day of July, 1893, is dependent upon the constitutionality of the act of the Legislature under which it was held.

Where usurpation of a public office, or franchise, is alleged by the State, and an information in the nature of a quo war-ranto is filed by the Attorney-General to test the right to hold such office, or enjoy such franchise, it is only necessary ordinarily to allege generally, that the person holding the office, or enjoying the franchise, does so without lawful authority, and in such case, as against the State, it devolves upon such person to show a complete legal right to hold the office or enjoy the privilege in question; but if the information states the facts upon which the charge of usurpation is based and the facts alleged show a clear right in the defendant, it will be held insufficient on demurrer.

Town of Enterprise vs. State, 29 Fla., 128, 10 South. Rep., 740, and authorities cited. The information filed in the case now before us charges usurpation of certain municipal offices, but it is also sliown that the defendants hold the offices by virtue of the election held on the 18th day of July, 1893, and their claim to the same is ■challenged on the ground that the legislative act under which said election was held is unconstitutional and void. No other grounds for annulling this election are alleged, and hence the constitutionality of the act is the question presented for our determination.

It is contended that the act in question, by its terms, discriminates against certain classes of persons residing in the city of Jacksonville and possessing the con.stitutional qualifications of electors, and that they are thereby excluded from the right to vote in the city elections, in violation of a constitutional right to do so. The third

section of the act under consideration reads as follows: ‘‘Those persons who at the time of the holding of any city election, are residents of the city, and who, at the time of the general State election held next preceding, were qualified electors of any of the election districts within said city, shall constitute the qualified electors of said city, authorized to vote at such city election.

Each such elector shall vote only in the election district wherein he was at the time of such State election, a qualified voter; provided, however, that prior to the holding of the first city election as provided herein, there shall be given to each person who was entitled to qualify himself as an elector at the last State election by registration and the payment of his poll taxes for the years 1890 and 1891', and failed to do so, an opportunity to qualify by registering and himself paying his own poll taxes for such years, more than two weeks before said first city election.” Provisions are then made for the tax collector of Duval county to open his books and receive the poll taxes, and for the election, commissioners named in the act to arrange for the registration of those persons who were entitled to qualify themselves to vote at the last general State election by registration and the payment of their poll taxes for the years 1890 and 1891, but failed to do so.

More specific reference to these provisions need not be made in this connection. According to the plain terms of this act, only those persons were authorized to vote in the municipal election of July 18th, 1893, who were residents of the city, and who, at the time of the general State election held next preceding said municipal election, were qualified electors of some one of the election districts within the city; or who were entitled to qualify themselves as electors at said State election by registration and the payment of their poll taxes due for the years 1890 and 1891,but failed to do so.

The act fixes July 18th, 1893, as the date for holding the first municipal election, and we take judicial knowledge of the fact that the general State election held next preceding this election was on the Tuesday succeeding the first Monday in October, A. D. 1892. The Legislature, then, by the terms of the act in question, confined the municipal election to persons residing in the city and who possessed the constitutional qualifications of electors more than eleven months prior to the date of said city election.

No provision is made whereby those who had acquired the requisite age, citizenship and residence as prescribed for voting in the general State and county elections, since the last general State election, could vote in the municipal election. This, it is contended, independent of the provisions in reference to other matters, renders the act void. This contention is based upon the theory that

Section one of

Article six of the Constitution of 1885 applies to municipal elections as well as to all other elections in this State, and is a limitation upon the powers of the Legislature.

Section one of

Article six of the Constitution provides that “every male person of the age of twenty-one years and upwards, that shall, at the time of registration, be a citizen of the United States, or that shall have declared his intention to become such, in conformity to the laws of the United States, and that shall have resided and had his habitation, domicile, home and place of permanent abode in Florida for one year, and in the county for six months, shall in such county be deemed a qualified elector at all elections under this Constitution.” Here, it is claimed, is the fountain source of the right to exercise the elective franchise in all elections by .the people, municipal as well as State and county, and that it is not within the power of the Legislature to curtail or in any way abridge this right.

Registration of the qualified electors may be provided for by the Legislature, of course, but counsel for +lie-State insist that registration is not one of the qualifications of an elector and that the Legislature under the power to provide for registration of qualified electors must enact laws that are “reasonable, uniform and impartial, and must be calculated to facilitate and secure, rather than subvert or impede the exercise of the right to vote.” The language quoted was employed by Chief-Justice Shaw, in the noted case of Capen vs.

Foster, 12 Pick., 488, in discussing the right of the legislature to regulate by registration the exercise of the elective franchise secured by constitutional provision. The authorities are uniform and abundant in support of the position that where the Constitution has prescribed the qualifications of electors it is not in the power of the legislature to take from or add to such qualifications, or to injuriously, unreasonably or ¡unnecessarily restrain, impair or impede the right of •suffrage thus guaranteed by the Constitution.

And •this constitutional guarantee against unreasonable and unnecessary restraint by legislative enactment extends ■to all elections provided for by the Constitution, whether state, county or municipal. In People vs. Canady, 73 N.

C., 198, it was decided that cities and towns, like counties and townships, were parts and parcels of the state, organized for the convenience of local self-government, and that under the Constitution of North Carolina the qualifications of voters in municipal elections were the same as in state aud county elections, and that it was not competent for the general assembly in any way to change the qualifications of voters as fixed by the Constitution.

The Constitution •of Massachusetts provided as to residence and citizenship that “every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the commonwealth one year, and within the town or district in which he may claim a right to vote six calendar months next preceding any election of governor, lieutenant-governor, senators or representatives, and who .shall have paid” certain taxes mentioned or be exempt therefrom, and possessing all other required qualifications, shall have the right to vote in such elections. It was held that

an act of the legislature providing that no person thereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such naturalization, was void and in conflict with the constitutional provision mentioned. By naturalization the person became a citizen and it wras competent for the legislature to add to or diminish the qualifications of a voter which had been prescribed by the Constitution. Kinneen vs. Wells, 144 Mass., 497. It was decided in Ohio (Doggett vs. Hudson, 43 Ohio St., 548), that

an act requiring registration in all cases as a condition to the right of suffrage, and allowing the voters' only seven specified days within the year in which to' register, and which contained no provision for registration after the seven days (though five days thereafter intervened before election day), and no regulation whereby those const! tionally qualified may, upon proof of qualification, and a reasonable excuse for not registering in time, be allowed to vote, and where no means were provided whereby persons necessarily absent at the time fixed for registration may have their names registered, was unreasonable and had a direct tendency to impair the right of suffrage, and as it might disfranchise a large class of persons without fault on their part, it was unconstitutional and void.

The following are among many decisions sustaining the same view: State vs. Connor, 22 Neb., 265; Dells vs. Kennedy, 49 Wis., 555; State vs. Baker, 38 Wis., 71; Rison vs. Farr, 24 Ark., 161; Monroe vs. Collins, 17 Ohio, 665; State vs. Butts, 31 Kansas, 537; Edmonds vs. Banbury, 28 Iowa, 267; Cooley’s Const. Lim., page 758. If

Section one of

Article six of the present Constitution, the one prescribing the qualifications of voters and declaring who shall “be deemed a qualified elector at all elections under this Constitution,” applies to municipal elections in this State, there can not be a doubt as to the fate of the act of the Legislature now under consideration. That it does exclude, by its terms, from voting at municipal elections in the city of Jacksonville, persons who may have the qualifications of electors for State and county elections, as prescribed by the

section of the Constitution referred to, is beyond question. It plainly excluded all of those residents of said.city who may have acquired the qualifications -of voters under the Constitution for State and county elections during a period of over eleven months prior to the first city election, and for longer periods at subsequent elections as ' they are required to be held biennially after the election in 1893, on the fourth Tuesday in May, and occurring during years in which no general State election will be held. It is then made necessary and unavoidable that we determine whether or not

Section one of

Article six of the present Constitution has prescribed the qualifications of voters at elections in municipalities created by the Legislature. This question has not been determined by any decision of this court, and no language used in prior decisions made here in reference to municipal corporations had any reference to the precise question now presented. In Attorney-General vs. Connors, 27 Fla., 329, 9 South. Rep., 7, that part of

Section 15 of

Article XVI of the Constitution providing that “no person shall hold or perform the functions of more than one office under the government of this State at the same time, ’ ’ was under consideration, and it was held that a municipal government created by the Legislature form-ed no part of the frame-work of the State government as constructed by the Constitution.

That the structure of the State government in all of its departments -was provided for by the Constitution, and the organization of municipal governments was expressly delegated to the Legislature, but what was said in that case had no reference to the qualifications of electors authorized to vote in municipal governments to be created by the Legislature. The case of State ex rel. vs. Commissioners of Duval County, 23 Fla., 483, 3 South.

Rep., 193, wasaproceed-ing by mandamus to compel defendants to perform certain duties preparatory to holding an election in the city of Jacksonville under the provisions of acts passed by the Legislature in 1887. The defenses interposed were that said acts were special and local, and no notice was given of the intention to apply for their enactment as provided in the 21st

section of

Article III of the Constitution; that the lieutenant-governor elected under the old Constitution of 1868 presided over the senate and signed said acts; that the title to the same was insufficient lender the Constitution; and that in consequence of the omission of certain provisions in sections of the original act in an amendatory act defendants were under no duty to perform them. The conclusion reached upon a consideration of the various provisions of the Constitution, having any bearing on the subject, was that the proviso in

Section 21 of

Article III of the Constitution in reference to notice for special legislation had no application to legislation in reference to municipalities. The yiews expressed in the opinion on this subject-are correct,-but they had reference to the constitutional requirements as to notice for special legislation, and the case is not an authority on the question of prescribing the qualifications of voters at municipal elections.

None of.-the cases in this court discussing the law bearing upon municipal governments under the present Constitution had reference to the question now presented. • Before examining the provisions of our Constitution that are necessary to be considered in disposing of the question, it will be well to fix in mind the legal status of the right of suffrage as exercised under our forms of government. The right to vote is not an inherent or absolute right found among those generally reserved in bills of rights, but its possession is. dependent upon constitutional or statutory grant.

Subject to the limitations contained in the Federal Constitution, the elective franchise is under the control of the sovereign power of the states expressed in constitutions or statutes properly enacted. Where a constitution has conferred the right and prescribed the qualifications of electors it, of course, is paramount until amended, and 'the Legislature can not change or add to them in any way; but where the Constitution does not fix the right of suffrage or prescribe the qualifications of voters it is competent for the Legislature as the. representative of the law-making power of the state to do so.

These principles are well recognized and fully established by authority in this country. In Kinneen vs. Wells, supra, it is said “the qualifications of voters are fixed by state legislation. The requisitions as to ownership of property, citizenship, sex and residence, in connection with the right of voting, vary with the Constitution or laws of the séveral states. However unwise, unjust or even tyrannical its regulations may be or seem to be in this regard, the right of each state to define the qualifications of its voters is complete and perfect, except so far as it is controlled by the fifteenth

article of the amendments of the Constitution of the United States, which provides that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’ ” On this subject Judge Cooley says, in Constitutional Limitations, page 752: “In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who ley the Constitution of the state are permitted to exercise the elective franchise.

The whole subject of the regulation of elections, including the prescribing of qualifications for suffrage,, is left by the national Con-' stitution to the several states, except as it is proyided by t-lmt instrument that the electors for representatives' in Congress shall have the qualifications requisite for electors of the most numerous branch of the state legislature, and as the fifteenth amendment forbids denying to citizens the right to vote _oti account of race, color, or previous condition of servitude.

Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy; the prevailing view being that it should be-as general as possible consistent with the public safety.” Ransom vs. Black, 54 N. J., 446; Huber vs. Reily, 53 Penn. St., 112; Anderson vs. Baker, 23 Md. 531. G-uided by the principles announced, we must determine whether or not.our Constitution has, in tin;

section prescribing the right of suffrage at all elections under it, fixed the qualifications of voters in municipal elections, or left it with the Legislature. Reference to various provisions of the Constitution will become necessary, and in considering them we are to be mindful of-the fact that the present Constitution is a revision of the former one of 1868, and not the establishment, of an entirely new and independent - instrument. This court has several times recognized this fact in construing clauses in the present Constitution. The 11th

section of the Bill of Rights in the Constitution of 1808-pro vided that “all laws of a general nature shall have a uniform operation.” This is omitted in the present instrument. The 17th

section of the Legislative Article-in the old Constitution provided that “the Legislature shall not pass special or lpcal laws in any of the following enumerated cases, that is to say, regulating the jurisdiction and duties of any class of officers, or for the punishment of crime or misdemeanors;, regulating; tlie practices of courts of justice; providing for changing venue of civil and criminal cases ¡granting divorces; changing the names of persons; vacating roads, town plats, streets, alleys, and public squares; summoning and empanelling grand and petit juries, and providing for their compensation; regulating county, township and municipal business; regulating the election of county, township and municipal officers; for the assessment and collection of taxes, for State county and municipal purposes; providing for opening and conducting elections for State, county, and municipal officers, and designating the places of voting; providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities; regulating the fees of officers.” By comparing

Section 20 of

Article III of the present Constitution, which corresponds with the 17th

section of the Legislative

Article in the old, it will be seen that everything relating to municipal organizations has been entirely eliminated, and no reference is there made to them except after the provisions regulating the jurisdiction and duties of any class of officers, and regulating the practice of courts of justice the words “except municipal officers,” and “except municipal courts,” are added.

The old Constitution pi'ovided that ‘ ‘the Legislature shall establish a uniform system of county, township and municipal government.” The corresponding provision in the new is that “the Legislature shall establish a uniform system of county and municipal government, which shall be applicable, except; in cases where local or special laws are provided by the Legislature that may be inconsistent therewith.” Sec. 24, Art. III.

The old instrument enacted that the Legislature shall provide by general law for incorporating such municipal, educational, agricultural, mechanical, mining and other useful companies or associations as may be deemed necessary. The same provision is incorporated in the revised Constitution with the word municipal left out. Sec. 25, Art. III. The following provision was in the former Constitution, viz: “The Legislature may establish courts for municipal purposes only, in incorporated towns and cities.

All laws for the organization or government of municipal courts shall be general in ^ their provisions, and be equally applicable to the municipal courts of all incorporated towns arid cities.” The corresponding

section in the present instrument is that “the Legislature may establish in incorporated towns and cities, courts for the punishment of offenses against municipal ordinances.” Sec. 34, Art. V.

The changes made in the revised Constitution as shown by the provisions here referred to, it may correctly be said, can not be construed to go any further than to ' release legislative regulations of municipal corporations from the limitations in the old Constitution in reference to the enactment of general laws on this subject, and to authorize the Legislature nowr to pass special laws relating to such matters when deemed necessary to do so.

Conceding that such was the main purpose of the revisers in making the changes referred to, it is apparent that they eliminated by the changes mentioned all provisions in the old -Constitution referring to and recognizing municipal offices as a part of the machinery of government established by that instrument. The old Constitution expressly referred to municipal officers as being embraced within the elective or appointive system under it. This is shown by clauses in the 17th

section above quoted, such-as “regulating the election of county, township and municipal officers,” providing for “opening and conducting elections for State, county and municipal officers.” The entire elimination of such clauses from the provisions referred to leaves no room for any contention so far as the provisions in lieu of them extend, that municipal elections are included in those embraced within the Constitution. The 27th

section of

Article 1Y of tile old Constitution reads as follows: ‘‘The Legislature shall provide for the election by the people, or appointment'by the Governor, of all State, county or municipal officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.” Provision was also made th'at all elections by the people shall be by ballot. The suffrage

section in the old instrument, after prescribing age, citizenship and residence at the time of offering to vote as qualifications of an elector, declared that any person mentioned possessing the qualifications prescribed “shall in such county be deemed a qualified elector at all elections under this Constitution.” Municipal officers, as is apparent, were recognized under the old instrument, but they were not therein designated, nor was the manner of their selection provided for.- The Legislature then was compelled by the terms of the Constitution to resort to one of two methods in filling municipal offices.

It had to be clone either by election by the people or appointment by the Governor, and if an election by the people was provided for, it had to be by the qualified electors as prescribed in the suffrage clause of that Constitution. It was held by this court before the revision of the Constitution that in the creation of ; municipal «governments by general law of uniform operation the Legislature might under the 27th

section of

Article IY, provide for the filling of the offices either by appointment by the Governor, or election by the people. Ex parte Wells, 21 Fla., 280. In revising the old Const!-tutionvery litrle material change was made in. the suffrage clause. An alteration appears in providing that the person should be twenty-one years old at tile, rime of registration, instead of at the time of olfering to vole, but the portion declining at what electrons the voter shall be deemed a qualified elector, is the same. A very material change, however, is made in the °7th

section of

Article IV of the, old Constitution. Municipal others are entirely eliminated, and the corresponding

section in the new is that “the Legislature shall provide, for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties ami compensation.” Sec. 27. Art. III. Certain State and county offices were created and designated by the Constitution, but municipal offices were left to legislative control.

In addition to the State and county offices designated it was within the contemplation of 1 he framers of the Constitution that other State or comity offices than those designate.il might-become necessary and have to be be created, and hence provision was made that tile Legislature should provide for election by the people or appointment by the Governor of all State and county officers not otherwise provided for by the Constitution.

This was the completion of the method provided by the Constit ution for filling' all State and county offices created, or that should be created under the Constitution, and where the elective system for these offices applies or is made applicable, the. persons possessing the qualifications under the suffrage clause in

Section one of

Article six, are the electors. They are made qualified electors at all elections under this Constitution. Bur it was certain that municipal offices were to be created by the Legislature and they were not designated or other .vise provided for in the Constitution, but express authority was granted to the Legislature, in

Section 8 of

Article VIII, to establish and abolish municipalities, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. The limitation being added that “when any municipality shall be abolished, provision shall be made for the protection of its creditors.” If the provision in reference to filling offices, in

Section 27 of

Article III, had been made applicable to municipal offices, no doubt could exist about the suffrage clause in

Section 1 of

Article YI applying to elections to fill such offices, but the revisers designedly, we must conclude, released municipal elections from the operation of

Section 27 of

Article III, and thereby qualified the application of the suffrage clause so fax’ as muni-pal elections are concerned. They are not elections under the Constitution, wtthin the meaning of the suffrage

section of

Article YI, but have been expressly exempted therefrom. Municipal offices are undoubtedly statutory offices, and in the absence of constitutional restrictions are under the control of the Legislature. Under the Constitution of Illinois it was made the duty of the general assembly to provide for a thorough and efficient system of free schools, where all the children of the state could receive a good common school education. The mode of organizing and administering the system was left to the general assembly without any constitutional regulations further than the mandate to provide for the system.

The only school officers provided for by the Constitution of that state were a county superintendent in each county, and a state superintendent of public instruction. As to the county superintendent the Constitution provided that his “qualifications, powers, duties, compensation, and the time and manner of election, and term of office shall be prescribed by law.” The general assembly of that state enacted that “any woman of the age of twenty-one years and upwards, belonging to either of the classes mentioned in

Article VII of the Constitution of the state of Illinois, who shall have resided in this state one year, in the county ninety days, and in the election district thirty days preceding any election held for the purpose of choosing any officer of schools under the general or special school laws of this State, shall be entitled to vote at such election in the school district of which she shall at the time have been for thirty days a resident; provided, any woman so desirous of voting at any such election shall have been registered in the same manner as is provided for the registration of' male voters.” In People vs.

English, 139 Ill., 632, the question arose as to the right of women to vote for county superintendent of schools, and it was held that, as he was a constitutional officer, the qualifications of electors as prescribed by the Constitution applied to all persons authorized to vote for him, and as the qualified electors under the Constitution were confined to male persons possessing certain qualifications, women were not authorized to participate in such an election. In the later case of Plummer vs.

Yost, decided in that state in January, 1893, it was held under the sanie act that women could vote for all other school officers not provided for by the Constitution. The two cases are not at all in conflict, and the distinction between them is clearly pointed out. While no person was authorized to vote for the election of any officer mentioned in the Constitution unless he possessed the qualifications of an elector prescribed by that instrument, yet this was not 'true of officers over whom the legislature had complete power and control.

It was said: “It can not be doubled Uiat, in providing fov a .system of free schools, a form of organization essentially different from the present one might have been adopted. Entirely different officers might have been provided for, and provision might have been made for the designation of those ■officers by appointment rather than by an election. Accordingly, it is provided by

Section 17 of

Article VT of the general school law, that in cities having a population exceeding 100.000 tire members of the school board of education shall be appointed by the mayor, by and with the advice and consent of tiie common council, and, unquestionably, a similar mode of appointment of school officers, other than the two above' mentioned (provided for in the Constitution) might have been constitutionally adopted.

The general assembly having complete control of the subject, liad, of course, the power to provide for the choice of these officers by popular vote, but such an election is not nec essarily a proceeding identical wi;h the elections provided for in the Constitution, nor is it necessary that the qualifications of those voting for school officers should be the same as those of ’elec-tors, as defined by the Constitution.” To the same effect is the decision in Wheeler vs. Brady, 15 Kansas, 26.

It is said in this case: “There is no school district election or meeting provided for in the Constitution; there is no provision as to how school district officers sh ill be eleetel. appointed or chosen, and we suppose tbit no one will claim that they are, by the terms of the Constitution, to be elected at either of the elections provided for in the Consiitution; hence it would seem that the legislature would have complete power over the matter; that the legislature might provide for the election or ap-pointin'*»:. of school district officers as it should choose, when it should choose, in the manner it should choose and by wliom it should choose.” The cases of State vs.

Cones, 15 Neb., 444, and Belles vs. Burr, 76 Mich., 1 were decided on the same principle. The late case of Coffin vs. Board of Election Commissioners of Detroit, decided by the Michigan court in October, 1893. does not conflict with the decisions above cited. The act of the legislature declared unconstitutional in the Coffin case authorized women to vote at all elections for school, village and city officers, and it was decided that it was not competent for the legislature to confer the elective franchise upon women for the purpose of voting-in city elections.

Such elections were embraced in the Constitution of that state, and lienee the qualifications of electors prescribed by the Constitution for voters at all elections applied. The Constitution' expressly referred to city elections and provided that the officers of cities and villages shall be elected at such time and in such manner as the legislature may direct. But the distinction drawn in the cases we have cited was recognized.

The opinion says: "‘These cases involved the validity of acts conferring upon females the right to vote for school district officers, under constitutions which, like our own. name no school district officer, do not prescribe, or suggest:- how such officers shall be chosen, but in express terms relegate to the legislature the duty of providing for and establishing •a system of primary schools.” In speaking of the power of the. legislature to prescribe qualifications of city officers. Judge Dixon said in State vs.

Von Baumback, 12 Wis., 310: “As to all offices and public trusts, to which the people, in the exercise of their paramount authority, have impliedly declared who shall be eligible, either by prescribing special circumstances which shall disqualify, or by reserving to themselves or to the appointing authorities a certain freedom of choice, there are very obvious reasons for holding that eligibility is in the nature of a constitutional right, and that the legislature possesses no power of exclusion not given by the Constitution; but it is manifest that those reasons can not be applied to a mere statutory office which the legislature may create and abolish at will, and concerning which the Constitution contains no express provisions.” A careful examination of all the authorities at hand has not revealed any conflict as to the principles of law announced in the foregoing cases.

The right of suffrage is not an inherent right, but is subject to the’ disposal of the sovereign power of the state. If the Constitution has regulated it in any department of government, it is subject to the limitations of that instrument, but should this matter, important as it is, be entirely relegated to the legislature, or left entirely to its discretion, the only limitations placed upon legislative power are contained in the Federal Constitution.

The principles of law here stated must govern us in testing the constitutionality of the act of the Legislature in question, and guided by them the conclusion is inevitable. The Constitution is a limitation upon the powers of the Legislature, and it is incumbent on those who maintain that the Legislature is forbidden to act in the matter to point out the specific provisions of the Constitution containing the prohibition. If we entertain a reasonable doubt about the act being in violation of the plain spirit and provisions of the Constitution, the question must be resolved in favor of the act.

There are provisions in the Constitution which apply to municipal corporations, but we do not think that

Section one of

Article six does. On the contrary, a careful consideration of the provisions of the Constitution applicable impress us with the view that the revisers have purposely exempted municipalities from its provisions, and relegated the matter to the Legislature. We are duly sensible of the grav - ity of this question, and have given it that consideration which its importance demands. Municipalities are-auxilliaries of state governments, and the rights and interests affected by them are just as vital and dear as those involved in state and county governments, and in some particulars even more so.

The justice or wisdom of constitutional or statutory regulations, however, are matters not subject to our control, but we must give effect to the law according to its meaning, to be ascertained by a consideration of all of its provisions.

The authorities cited by counsel on this branch of the case have been carefully read, and while they sustain fully the position that the Legislature can not make any unreasonable or unnecessary regulations tending to abridge or impair the right of suffrage secured by the Constitution, they fall short of establishing the vital point in this case, that elections to fill municipal offices created by the Legislature are subject to suffrage clauses in constitutions with provisions similar to our own. The decision in Gooding vs.

Brown, 22 Fla., 437, was made under the old Constitution, and it is clear that the clause in that instrument prescribing the qualifications of voters was recognized as applying to municipal elections, as it undoubtedly did, but the limitations in the present Constitution do not apply to-such elections as we have pointed out. The case of People vs. Canady, supra,, was well considered, and contains a lucid statement of the law, but there it was. clear that the constitutional limitation as to suffrage did apply to municipal elections.

The Constitution of North Carolina, in broad terms, provided that every male person twenty-one years old, resident in the state-twelve months, and in the county thirty days, shall be an elector. In other sections it was provided that all county and township elections shall be by the qualified voters therein, and that no county, city, town or other municipal corporation shall contract any debt unless by a vote of a majority of the qualified voters therein.

Thebe was nothing in the North Carolina Constitution to negative its application to municipal elections, but its provisions showed clearly that it was intended to so apply. The same may be said of the case of Attorney General vs. Detroit Common Council, 58 Mich.. 213. There the clause of the Constitution prescribing the qualifications of voters expressly refers to elections in townships and wards, and there was no question raised as to the application of the suffrage clause to municipal elections.

None of the decisions cited conflict with the construction that we are constrained to put upon the clauses of our Constitution. The result is, that none of the grounds alleged in the information for annulling the act in question, based upon the exclusion of the classes of persons mentioned possessing the constitutional qualifications of voters for State ami county officers since the general State election in 1892, are availing. The Legislature had complete power over this matter, and in the absence of constitutional limitation its will must prevail. II.

Another alleged ground attacking the validity •of the act in question, is that by its terms persons were permitted to vote in the municipal election who were ■qualified electors at the general State election held next prior thereto but who had afterwards lost their •domicile in the State of Florida and county of Duval, and had not regained the same in tithe to become an elector at the time of the city election.

The act confines the right to vote in municipal elections to re si-dents of the city at the time of the city election, who were qualified electors, or entitled to become such, in any of the election districts within the city at the time of tiie geneial State election held next preceding. It is insisted that this will permit- persons to rote in the city election who, though qualified electors at the last general State election, may have become disqualified to vote, since said State election, by reason of conviction for crime or other cause.

It is not alleged as a matter of fact that any such disqualified persons voted at the election in July, 1898, but the -law is claimed to be void because by its terms such persons are permitted to rote.

The election commissioners named in the act are required to prepare a list of the electors qualified to vote in each of the. citywards at the last general State election, and this is made the list of electors at the city election, “except that the said commissioners shall add to or strike from the lists the names of such persons as may, as herein provided, appear improperly placed upon or left off said lists, or by reason of sub sequent qualification entitled to be added thereto.'' In making the list of electors for the city election the commissioners are given access to the county registration books, tally sheets and poll lists used at the last general State election, as well as to ail other papers in .the office or custody of the county supervisor of registration, and in the office of the tax collector of Duval county.

The names of the persons on the list when made are required to be published, and the election commissioners from the best information obtainable are to revise the lists so as to .contain all and only the names of persons who,, at the time of revision, are residents of the city and who were, at the time of the last general State election, qualified- electors, of the-•election districts in the city, or who have since that time registered and paid their poll taxes as provided in the act.

It is also provided that if an elector be 'Challenged he shall make oath that he is a resident of the city and entitled to vote at the election. “If his name appears upon the list of electors for the ward (and, if required, he take such oath), he shall be permitted to vote, but no person whose name does not so appear shall be permitted to vote.” The Constitution provides that no person convicted of any felony by a court of record shall be qualified to vote at any election unless restored to civil rights, and the Legislature is directed to enact the necessary laws to exclude persons convicted of certain crimes .from the right of suffrage.

Sections 4 and 5,

Article VI. In obedience to this command the Legislature has enacted a general law excluding persons convicted of certain crimes from the right of suffrage. Revised ■Statutes,

Section . 154, Division 5. There is no purpose manifested in the act under which the election in question was held to repeal the general law in reference to excluding persons convicted of crime fro in voting at elections, and if the two can be construed in harmony with each other the rule is that it must be done.

The act, it is true, declares those persons, residents of the city, who were qualified electors at the time of the last general State election, or entitled to become such by registration and the payment of poll taxes due for 1890 and 1891, qualified and entitled to vote in the city election, and there is in the act no express direction to the election commissioners to strike off the names of persons convicted of crimes disqualifying them to vote at any election, but the reference is to the qualified voters at the last State election, and no purpose is shown to suspend the operation of thecrim-inal laws in reference to crimes disqualifying one to vote.

The general law and the act we are construing can be construed in harmony in reference to the conviction of crimes taking away the right of suffrage, and this 1. eing the case such construction should be given to them. Those who possessed the qualifications of electors at the general State election next preceding the city election and complied with the law as to registration and the payment of poll taxes, or could have done so, were authorized to vote at the city election provided they were at that time residents thereof.

Residence of a qualified voter in the city at the time of the election in connection with the qualifications mentioned at the preceding general State election, conferred the right to vote at the city election without regard to changes of residence since the said State election. There is no constitutional- prohibition against the power of the Legislature to prescribe such qualifications. III.

It is further alleged that the act is void for the reason that by the terms thereof only those persons were allowed to vote whose names appeared on the lists after the same had been revised by the commissioners of election, without regard to registration in fact.

After declaring who should constitute the qualified electors authorized to vote at the city election (being those persons residing in the city at the time of the city election, and who at the time of the general State election held next preceding, were qualified electors of any of the election districts within said city, or who were entitled to qualify themselves to vote at said State election by registering and paying their poll taxes due for the years 1890 and 1891), the act directs the commissioners of election to prepare a list of the electors qualified to vote at each of the city wards at the last general State election, and this list, it is declared, shall constitute the qualified electors to vote at the city election, subject to revision and alteration as provided in the act.

In making up the list of qualified voters for the city election access was given the commissioners to the county registration books, tally sheets and poll lists used at the last general State election, and all other papers in the office or custody of the county supervisor of registration, and in the office of the tax collector of Duval county.

The names of the qualified voters on the list prepared by the commissioners are required to be published, not more than two weeks before the city election, one time in a newspaper with notice of a time and place when the commissioners would meet to revise the list, the notice to be published at least two days before the meeting.

At the time and place mentioned in the notice the commissioners were required to meet, and “from the best information obtainable, revise said lists so as to contain all and only the names of persons at that time residents of said city, and who were, at the time of the last general State election, qualified electors of the election districts in said city, or who have since that time registered and themselves paid their own poll taxes for the years 1890 and 1891.

Such lists so revised shall constitute the list of qualified voters for the several wards at said city election.” It is further provided that not less than five printed copies of the list for each ward shall be made out, on the same form as the county registration books, so as to show the number of registration certificates, age, color, etc., and each copy to be certified to be correct, by the chairman of the board of election commissioners.

The lists so made and certified are for the use of the inspectors and clerks appointed to hold the election, and they are required to be prepared and open to inspection at least five days before the election, and subject to correction of clerical errors by the- board of election commissioners. No person whose name does, not appear upon the list of electors for the wards shall, be permitted to vote.

It is apparent from the provisions of the act that the-' commissioners were not given arbitrary power to put. on the list to be prepared by them such names as they pleased, but it was made their duty to place thereon all and only the names of persons possessing the qualifications of electors prescribed by the act for voting in the municipal election. In ascertaining who were the persons authorized to vote in the city election the commissioners were under a duty to act according to law, and not arbitrarily, and their'action in this respect was subject to review by a court of competent jurisdiction.

Many authorities hold that where a law provides that no vote shall be received at an election-unless the name of the voter is on the registration list as prepared by the registering officers, it is in violation of that portion of the Constitution defining the-qualifications of electors. Dells vs. Kennedy; State vs. Conner; Doggett vs. Hudson, and People vs, Canady, supra, belong to this class of decisions.

They are based upon the theory that the constitutional qualifications of electors apply, and that the Legislature can not by any regulations deprive the voter of a right given him by the Constitution without fault on his-part. But as we have already seen, the qualifications of electors prescribed by our Constitution at all elections under it do not apply to municipal elections, hence there is no inhibition in this clause against the authority of the Legislature to make the ascertainment of the elector’s right to vote in the city election by the* election commissioners conclusive.

It may be contended, however, that after prescribing the qualifications of those who were entitled to vote in the municipal election, the Legislature could not confer ux>on the commissioners the power to conclusively determine who were possessed^ of the qualifications thus prescribed, on the ground that it was granting to a mere ministerial board judicial powers with which it could notbe invested.

If it be conceded that the Legisla - latnre could not make the ministerial ascertainment by the board of election commissioners conclusive of the voter’s rights under the statute, this will not authorize the vacation of the election held in July last on the showing before us. It is not alleged or claimed that any voter was denied his right to vote at said election by reason of the failure of the commissioners to x>er-form their duty under the statute, and for aught we know every x>erson in the city authorized to vote cast his ballot.

The Legislature had the right to prescribe the qualifications of voters at such an election,’ and it was competent for it to provide the means of ascertaining who were the j>ersons authorized to vote.

Although the action of a ministerial board in performing the duty of ascertaining the qualified electors under a statute may not be given a conclusive effect as to the voter’s rights, and to the extent that the statute before us undertakes to make such action conclusive, it may be inoperative, yet this alone should not invalidate an election in the absence of any showing that voters -were deprived of any rights under the statute. IV.

It is also alleged that by the terms of the act in question the qualified electors of the city of Jacksonville were not permitted to vote for whom they pleased, but were restricted in the right of suffrage to vote for persons whose nam.es were placed upon an official ballot by the election commissioners. It lias been held by this court that the last clause of

Section 6 of

Article Ylof the Constitution, which is, that “in all elections by the people the vote shall be by ballot,” applies to municipal elections. State ex rel. vs. Anderson, 26 Fla., 240, 8 South. Rep., 1. We still adhere to this decision. It was here said that “the material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote.

The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, or shall know unless the voter shall of his own free will inform Mm.” There is no doubt in our minds about the right of the Legislature to prescribe an official ballot and to prohibit the use of any other, and the provisions of the act in reference to printing the names of candidates regularly nominated by a convention, mass meeting, or primary election, or who run as independents, are valid.

But the Legislature can not, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has guaranteed to him this right. If the Legislature can restrict the voter to some candidate whose name is printed on the official ballot, then it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice.

Counsel for defendants contend that while the act prescribes an official ballot, and prohibits the use of any other, and also provides for the printing upon the official ballot to be. used, the names of all candidates who have been certified to the election commissioners as put in nomination by any convention, mass meeting or primary election, as well as indepéndent candidates who have the endorsement for that purpose, of ten per cent., and not less than twenty-five, of the electors qualified to vote for such office, yet it does not prohibit the voter from putting another name by ‘ ‘paster’ ’ over the name of any candidate on the ballot, or from erasing the name of any candidate and writing in lieu thereof another of the voter’s choice.

We have considered the cases cited on this point: Ranson vs. Black, 54 N. J. L., 446; Common Council vs. Rush, 82 Mich., 532, and DeWalt vs. Bartley, 146 Penn. St., 529, and recognize fully the rule that every presumption is in favor of the constitutionality of the law, and that it will require a very clear case to justify a court in striking it down on the ground of unconstitutionality. It is also true that where

an act is fairly susceptible of two constructions, one of which conflicts while the other is in harmony with the Constitution, that construction which supports will be preferred to that which destroys the law. City of Emporia vs. Norten, 13 Kansas, 569. The act before us prescribes an official ballot and prohibits the use of any other.

Upon each ballot shall be printed in uniform plain type in a single column the names of all the candidates certified to the election commissioners in the manner provided in the act, and the names of all candidates for the same office shall be printed together, and arranged alphabetically according to the initials of their surnames, irrespective of party. Immediately to the left of each name, in a line with the middle of the letters of the name, a dash or short line not less than one-quarter of an inch in length is required to be printed.

Specific directions are then given for arranging on the ballot, the names of the various officers to be. voted for as follows, viz: “On said ballots shall be printed, first, under the head of ‘Mayor,’ the words ‘vote for one,’ followed by the names of all the candidates for that office; next under the head ‘Councilmen at Large,’ the words ‘vote for seven,’ followed by the names of all the candidates for that office,” and so on for all the officers to be elected.

On the ballots for councilmen at large on the line with the name, the number of the ward in which the candidate Tesides 'is printed, and each ballot is to have attached ,to it a stub so attached that when the ballot is folded the stub can be detached without injury to the ballot or exposing its contents, upon which stub the number of the ballot for that ward must be printed. Provision is also made for attaching together in blocks the ballots for use at the wards, the number of the ballots to be used, and for furnishing the inspectors of election with the ballots for use on the day of election.

It was entirely competent for the Legislature to prescribe the regulations here referred to, and if there were no others on the subject of casting the ballot, we think the voter, although confined to the use of the official ballot, could put upon it the name of any person in lieu of the name of the candidate printed thereon, and such a ballot would be legal. There is in the provisions here referred to no denial, express or implied, of his right to do so, and under the decisions cited we think he would'have such right. But in another portion 'of the same

section of the act, in providing for the entrance of the voter into the polling-place and the receipt by him of an official ballot, it is enacted that “he shall'go to one of the voting shelves, tables or compartments, and there privately cross or check-mark ¿cross the dash, or short line in front of the name of the candidate of his choice for each office to be filled, which, cross or check shall constitute liis vote.” The requirement is that he shall check the name of the candidate of his choice.

The candidate here referred to can not fairly or naturally mean any other than some candidate whose name had gotten on the ballot in the manner provided in the act. This is the only fair and reasonable construction to be put upon the clause mentioned, and its effect is to restrict the voter to a choice of candidates printed on the ballot, which we have said can not be done. That phase of the act, then, which restricts the voter to checking the name of some candidate on the official ballot is in conflict with the constitutional provision in reference to voting by ballot.

The result just stated gives rise to the question whether the valid parts of the act can remain operative notwithstanding the unconstitutional feature, and •whether they are so essentially and inseparably connected in substance that the Legislature would not have enacted the one without the other.

If the two can be separated and the legislative purpose expressed in the valid portion can be accomplished independently of the void part, and considering the entire act it can not be said that the Legislature would not have-passed the valid part had it been known that the invalid portion must fail, it is our duty to sustain so much as is good. In English vs. State, 31 Fla., 340, 12 South. Rep., 689, and Donald vs. State, 31 Fla., 255, 12 South. Rep., 695, the constitutionality of the act of 1891, reducing a grand jury to twelve persons, and giving eight of the number the right to find a bill, wms before ns.

It was held that the Legislature could not authorize less than twelve grand jurors to find an indictment, but upon consideration of the entire act in which the provision reducing’ the number to twelve was found, it could not be said that the Legislature would not have passed the provision making the jury consist of twelve persons had it been known that the other clause authorizing eight to concur in finding indictments could not be carried out.

In the Donald case it was said that “the distribution of statutes into sections is, however, purely artificial, and in determining whether the valid parts can remain operative notwithstanding the unconstitutional parts, the point is not whether they are contained in the same section, but whether they are essentially and inseparably connected in substance, or are so interdependent that the Legislature would not have enacted one without the other.” The unconstitutional feature of the statute now before us is in requiring the voter to check a candidate printed on the official ballot.

If this fea+ure be eliminated the remaining portions of the act are sufficient to authorize an election and permit the electors to vote for whom they please. The leading and controlling purpose of the act was to permit the electors named in it to vote for municipal officers in the city of Jacksonville, and we can not say that the Legislature would not have passed the valid portions of the act if the void feature had been called to its attention. The greatest difficulty we have had on this branch of the case is in determining the effect of the void portion of the act on the election already held.

In the case of State vs. Constantine, 42 Ohio St., 437, it was denied on quo warranto proceedings that a statute authorizing an election of four members of the police board at the same election, but denying an elector the right to vote for. more than two members, and directed the rejection of any ballot with more than two names on it, was in conflict with the Constitution regulating the right to vote by ballot, and that The members elected at such, an election were not duly ■elected, and should be ousted from their offices. In People vs. Kenney, 96 N.

Y. 294, it was held that where part of a statute was unconstitutional, this did not affect the validity of the remainder, unless the provisions are so interdependent that one can not •operate without the other, or are so related, in substance and object, that it is impossible to suppose that the Legislature would have passed the one without the other. After striking out the invalid part, if that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be retained, and this is so although the condemned portion is found in the same

section with' the part retained. In this case it was further held, in construing

an act providing for the election of aldermen at large of the city of New York, and prohibiting the electors from voting for more than two-thirds of the whole number to be elected, that conceding such a provision, as to voting for two-thirds only, to be in conflict with the Constitution, this did not affect the validity of the residue of the section, or prevent the election of aldermen in the manner specified. It is said: “So far as the case discloses, every voter in the city voted for as many candidates for aldermen at large as he wished to.

It does not appear that any voter claimed the right to vote for all the six aider-men, and was denied that right. If he chose voluntarily to waive his constitutional right to vote for six, and to vote for but four, that he could do and his ballot would be a valid ballot.” People vs. Perley, 80 N.

Y., 624, holds that where a statute prohibits those voting at an election from voting for more than two of three officers to be elected, ballots cast in pursuance of .the act are not invalidated by its unconstitutionality in part; tbe fact that the electors exercised in part only their privilege or duty of voting, does not affect the votes actually given. The decision in Anderson vs. Saucer, 13 La.

Ann., 301, was that the principal object of an election is the casting of votes, and the unconstitutionality of police provisions of an election law can not render votes cast illegal, and thus disfranchise those who vote; the citizens have the prerogative of voting, and the Legislature cannot, by encompassing with unconstitutional provisions an election law, make the votes of electors null and void. The public good demands that the will oí the people as determined at the ballot box should not lightly be disturbed.

In considering objections to an election on the ground that the registration law made no provision for the registration of those who might become qualified to vote after the registration is closed, and before the day of election, Judge McCay said, in Weil vs. Calhoun, 25 Fed. Rep., 865: “It seems to me that such objections to the registration ought, for reasons of public policy, to conform to the rules applicable to objections to elections not held in strict conformity to law, to-wit: It should be made affirmatively to appear that the result would have been different had the illegality not existed.

Perhaps the voter might have private redress for the wrong done him in refusing his vote, but that is a very different thing from making an election void on a mere abstraction not affecting the result. ’5 In the Ohio case cited, the void portion of the act was regarded as destructive of the whole, but the other cases mentioned are opposed to this view.

As has already been stated, if we reject the void portion of the act before us, which must be clone, what remains is sufficient to authorize an election, and there is no allegation that any voter, at the election in question, desired to vote for any other person than some candidate on the official ballot, and was as a matter of fact denied the right to do so. The State is standing entirely upon the unconstitutionality of the entire act and the rights of all the voters at the election are involved.

The better rule is, it seems to us, that where an election authorized to be held is attacked solely on the ground of the illegality of some of the provisiont of the law under which it is held, but not affecting is as an entirety, it should be made affirmatively to appear that the result would have been different had the illegality not existed. V. What has been said disposes of' all the objections alleged in the information to the validity of the act in question, but others were urged in argument here and insisted on in the briefs filed, and we should notice them.

Several objections are made to the provisions-of the act requiring the payment of poll taxes by those who were entitled to qualify themselves to vote at the last general State election by registration and the payment of their poll taxes for the years 1890 and 1891, but failed to do so. The first objection under this head is, that the act is void because it requires the voter to pay in person (the poll taxes mentioned, and denies him the right to do so by an agent.

The language of the act on this subject is: “Provided, however, that prior to the holding of the first city election as provided herein, there shall be given to each person who was entitled to qualify himself as an elector at the last State election by registration and the payment of his poll taxes for the years 1890 and 1891, and failed to do so, an opportunity to qualify by registering and himself paying his own poll taxes for such years, more than two weeks before said first city election.” The list of persons authorized to vote at the city election prepared by the commissioners of election is required to be revised so as to contain “all and only the names of persons at that time residents of said city and who were, at the time of the last general State election, qualified electors of the election districts in said city, or who have since that time registered and themsel ves paid their own poll taxes due for the years 1890 and 1891.” Our construction of the provisions mentioned is, that they do not deprive the voter of his right to pay his poll taxes through an authorized agent, and that a payment made by such agent would be a valid payment under the terms of the act.

A liberal construction should obtain in favor of the voter’s right to make the payment through another, and the act does not in terms deny such right. It is true it says ‘ ‘himself paying his own poll taxes” for the years mentioned, but the general principle, gui facitper alhom faoitper se, should apply, and the payment through an authorized agent would be the payment by the voter himself. In the case of State ex rel. vs. Johnson, 30 Fla., 499, 11 South.

Rep., 855, we held that under the statutes regulating the payment of the poll taxes since June 12th, 1892, a tax collector had no right to refuse to receive such taxes when tendered by a party on behalf of others from whom they are due, although the person making the tender was not authorized by the other persons to pay the same. This was the construction put upon the statutes in force since the adoption of the Revised Statutes in reference to paying poll taxes, and no question as to the power of the Legislature to restrict the voter to the payment of such taxes in person arose or was decided in the case.

In the present case we hold that the Legislature has not denied the voter the right to pay his poll taxes through another authorized to do so, and that payments made by such .agent must be considered payments made by the voter himself. This being the proper construction to be placed upon the act, it is unnecessary to say anything in reference to the power of the Legislature to require payments in person by the voter. VI.

It is further objected that the act under consideration requires the payment of two poll taxes, that is, poll taxes for both of the years 1890 and 1891, as a prerequisite to the right to vote in the municipal election held in July, 1893.

The meaning of the act, and hence the proper construction to be put upon it, is that the ■class of persons mentioned as being entitled to qualify themselves to vote at the last general State election, by registration and the payment of their poll taxes for the years 1890 and 1891, and failed to do so, shall be permitted to do so by registering before the election commissioners and paying, within the time specified, such poll taxes as they were due for the years 1890 and 1891. 'The act does not impose upon the class of persons mentioned any poll taxes that were not due for the years 1890 and 1891, but does require the voter to pay within the time mentioned in the act such poll taxes as he would have had to pay in order to vote at the State ■election in 1892.

This is apparent from the language ■of the act, that they shall “pay their own poll taxes due for the years 1890 and 1891.” Under the State registration law the supervisor of registration was directed to note on the books to be furnished the inspectors of the different election districts the names of all persons registered therein who shall have paid, at least thirty days before the day of election, their poll taxes for two years next preceding such election as shown by the lists furnished to the supervisor by the tax collector, and only such persons shall be deemed qualified ■voters or authorized to vote at any general, special or municipal election; “provided, .that no person shall be prevented from voting on account of not having so paid a poll tax, for any year which shall not have been lawfully assessable against him by reason of his not having been a resident of the State, or not having been of age, and who shall have obtained from such supervisor a certificate to that effect, and shall at the time of offering to vote exhibit such certificate to the inspector1 of elections.” Rev.

Stat., sec. 173. The act under consideration has reference to the poll taxes due under the general revenue law for the years 1890 and 1891, and if no poll taxes were due under the requirements of that law, then none could be insisted on under the municipal act as a prerequisite to the right to vote in the city election. If, however, a poll tax was due for either of the years mentioned, it was required to be paid.

This is the proper construction to be placed upon the act, we think, and if it is competent for the Legislature to make the payment of the one dollar capitation tax for more than one year in arrear a prerequisite to the right to vote in municipal elections, all ob-jéetions. as to the right to demand payment of- poll taxes from the municipal voters, must fail. The constitutional provisions on this subject are: “The Legislature may also provide for levying a special capitation tax, and a tax on 'licenses.

But the capitation tax shall not exceed one dollar a year, and shall be applied exclusively to common school purposes.”

Article IX,

Section 5. “The Legislature shall have power to make the payment of the capitation tax a prerequisite for voting, and all such taxes received shall go into the school fund.”

Article YI,

Section 8. One dollar a year is the limit authorized to be imposed for a capitation tax, and this tax can be made a prerequisite to the right to vote. There is in the provisions of the Constitution referred to no limitation against the right to require delinquent capitation taxes to be paid as a prerequisite to voting; provided ■such taxes do not amount to more than one dollar each year. Neither the State law, nor the act under consideration, requires the payment of more than one dollar a year for the years 1890 and 1891.

It is competent for the Legislature to require the payment of the capitation tax as a prerequisite to voting, and this includes all the annual capitation taxes remaining unpaid, not exceeding of course one dollar for each year. Under this head it is further insisted that the requirement as to the payment of poll taxes more than two weeks before the election is void. This objection may be considered in connection with the one against the regulations prescribed as to registration before the commissioners of those persons who were entitled to qualify themselves to vote at the last general election and failed.

The provisions, both as to the time of payment of the poll taxes and the registration of the persons designated, it is insisted are unreasonable, unnecessary and tend to impair and subvert the right to vote.

Those persons residing in the city at the time of the city election, and who at the time of the general State election held next preceding, were qualified electors, were declared by the act to be the qualified electors in the city election, with a further provision that those who were entitled to qualify themselves to vote at said State election by registering and paying their poll taxes due for the years 1890 and 1891, and failed to do so, should have an opportunityjto register and pay said taxes two weeks before the city election.

The tax collector’s books were required to be kept open from the first of June, 1893, until the time for paying poll taxes for the purposes of the election expired. The registration contemplated was to be had under the ■supervision of the election commissioners. They were ■directed to meet on or before the 3rd day of July, 1893, -and provide for the registration of those to whom the ■opportunity for registering had been given. We again observe that it is not a constitutional right here regulated, but the conferring of a right by the Legislature not guaranteed by the Constitution.

Neither is it alleged or claimed that the election commissioners did not in fact make ample provision for registering all those who were entitled to register, or that any person so entitled did not register and vote. The election is claimed to be void because the regulations as to paying poll taxes and registering are unreasonable and impair the voter’s constitutional rights as an elector. It is not necessary to say what would be our conclusion if we were dealing with regulations of the right of suffrage secured by the Constitution, as the voter at municipal elections under our Constitution has no such right.

The Legislature under our system has control of this matter. In the case here the Legislature provided that certain persons should have the right to vote at a municipal election by paying poll taxes in arrear and registering two weeks before the election. The registration contemplated was to be under the control and'Supervision of the election commissioners, and they were required to meet on or before the 3rd day of J uly and provide for the registration of those who were given an opportunity to do so.

In passing upon the validity of this act we are to be guided by the rule that a deliberate act of the Legislature must be upheld if it can be done without doing violence to the fundamental law. Its reasonableness or justice, so long as it does not contravene some portion oí the organic law, is a matter for legislative consideration, and not subject to our control. Should we entertain the view that the time given in the act for registration was unreasonable, the legislative view is different, and as there is no constitutional limitation upon its action in this respect, its will must stand as the law.

The attack upon the election held thereunder is based solely upon the sufficiency of the law authorizing it, and such election can not be set aside, especially where there is no showing that any voters were deprived of any rights given by the statute by reason of the failure on the part of the election commissioners to perform the duties imposed upon them. VII.

A further objection is made that it was not competent for the Legislature to appoint or designate the three election commissioners named in the act, for the reason that this was not a legislative function, but executive, in its nature, and hence forbidden to be exercised by the legislative department.

The act declares that three persons named shall constitute ‘ :a board of election commissioners to make all the necessary preparations for and hold and declare the result of the election to be held July 18th, 1893; and thereafter the board of police commissioners shall perform those duties. ’ ’ The objection here made is not that the Legislature can not provide for a' board of election commissioners to make the necessary preparations for and to hold and declare. the result of the election, but that the designation of the members of the board is an executive function, and does not belong to the Legislature.

It is entirely clear that the three election commissioners provided for in the act are not officers within the meaning of

Section 27 of

Article III of the Constitution, nor are they officers in any sense, but constitute a temporary board for the performance of certain specified duties. in connection with holding an election authorized by the Legislature. If the appointment of such a board is inherently and essentially executive in its nature,, the distribution of powers of government under the-second

article of the Constitution will take it out of the powers of the Legislature. But our conclusion is. that the designation of persons to perform the functions conferred upon the commissioners of election in the act before us is not necessarily or essentially executive, and that the Legislature can exercise such a power. For a discussion of the law bearing on this-subject we refer to the cases of City of Evansville vs. State, 118 Ind., 426; State ex rel. vs. Denny, Ibid. 449; Hovey vs. State, 119 Ind., 387; Fox vs. McDonald, (Ala.), 13 South. Rep., 416; Barnes vs. Supervisors, 51 Miss., 305; Note to People vs.

Freeman, 13 Am. St. Rep., 122 (80 Cal. 233), and authorities cited. We have maturely considered all the objections presented as to the constitutionality of the act in question, and the validity of the -municipal election held under it in July last, and the -foregoing pages contain a reference to and discussion of all the material points-in the case. Our conclusion is, that the demurrer to the information should be sustained, and it is so ordered.