Pennsylvania Advisory Opinions August 25, 1864: AGO 226

Advisory Opinion Text

II PERSONS ENTITLED TO VOTE

Qualified electors of the Commonwealth in actual military service under requisition from President of the United States or by authority of the Commonwealth who are absent from their residence on legal or special election days are entitled to vote under the Act of August 25, 1864, P. L. 990.

Sec. 1, Act of 1864, P. L. 990.

Note. "Soldiers in active military service" include those at their respective places of rendezvous in the State under order of the Federal authorities, whether awaiting discharge or further orders, and are entitled to vote at their respective places of rendezvous, whether camp or armory, as well as those actually without the State and under the order of the Federal authorities or commander-in-chief. Soldiers at home on furlough must vote at their place of residence.

Opinion Atty. Gen. 21 Pa. C. C. 456.

III.

QUALIFICATIONS OF VOTERS.

Every male citizen twenty-one years of age possessing the following qualifications shall be entitled to vote at all elections:

(1) He shall have been a citizen of the United States at least one month.

(2) He shall have resided in the State one year (or having previously been a qualified elector or native born citizen of the State he shall have removed therefrom and returned then six months), immediately preceding the election.

(3) He shall have resided in the election district Where he shall offer to vote at least two months immediately preceding the election.

(4) If twenty-two years of age and upward, he shall have paid within two years, a State or County tax, which shall have been assessed at least two months and paid at least one month before the election.

Constitution, Art, VIII, Sec. 1.

Note. The soldier's service in the army does not cause him to lose his residence.

Constitution, Art. VIII, Sec. 13.

Two interesting questions arise as to the qualifications of electors;"

(1) Does the Act of March 5, 1906, P. L. 63, as amended, requiring personal registration in third class cities and the Act of July 24, 1913, P. L. 977, requiring personal registration in first and second class cities, apply to elections held by soldiers in the field and absent from their places of residence.

(2) What taxes must be paid by the soldier in order to qualify him for voting purposes and by whom must payment be made.

These questions will be discussed seriatim.

As lo personal registration, I am clearly of the opinion that a soldier does not have to comply with the personal registration acts in order to permit him to vote in the field. The constitutional amendment of 1804, the provisions, of which, were retained, verbatim, in the present constitution, provided, that soldiers shall have the right to vote under such regulations as the legislature may provide and the legislature has provided a complete and detailed method whereby soldiers in actual service and away from their places of residence may' cast their ballots. The personal registration acts never contemplated the soldier vote, and to so construe the acts, would be to impute to the legislature the requirement of an impossibility and an intent to disfranchise every soldier in actual service who is a resident of a first, second or third class city. The right of an elector to vote is one of the highest rights of citizenship and it should not be defeated by anything other than an insurmountable obstacle. Moreover, the title of the personal registration acts clearly indicate, that the legislature never contemplated their application to persons in actual military service. The title of the Act of 1906 says, it is an act

"-to provide for the personal registration of electors in cities of third class of this Commonwealth, to make' such registration a condition of the right to vote in such cities, and to provide penalties for violation of its provisions."

Likewise the Act of 1913, regulating personal registration in first and second class cities is entitled:

"An act to provide for the personal registration of electors and their enrollment as members of political parties in cities of first and second class in this Commonwealth, to make such registration a condition of the right to vote in such cities, etc."

In other words, the intent of the legislature is to require personal registration as a condition precedent to the voting of citizens in their places of residence and therefore, has no application to the military vote where the election is held and the ballots are cast at a place other than the electors place of residence. It is a well settled rule, that the title of an act is a part thereof, and may be resorted to, in ascertaining the legislative intent, I am, therefore, of the opinion, that the soldiers need not personally register in first, second and third class cities and that on being challenged, he may establish his residence in the same manner as an elector, who is challenged at an election held at his place of residence in a borough or township.

(2) What taxes must be paid by the soldier in order to qualify him for voting purposes and by whom must payment be made.

Art. VIII, Sec. 1 of the Constitution provided, inter alia that if a citizen shall be twenty-two years of age and upwards in order to qualify him to vote, he must have paid within two years a State or county tax, which shall have been assessed at least two months and paid at least one month before the election.

Section 40 of the Act of August 25, 1S64, P. L. 990 makes it the duty of the assessor to assess .and return in the usual way a county tax of ten cents upon every non-commissioned officer and private and the usual taxes upon every commissioned officer, known to such assessors to be in the military service of the United States or of this State, When the assessor omits an names, they must be added to the assessments and lists of voters, on application of any citizen of the district wherein the soldier might have voted were he not in such service. The non-commissioned of; ficers and privates are made exempt from all other personal taxes during their continuance in the service. The assessor must, in each case of such assessed soldiers, without fee or reward therefor, give a certificate of the assessment to any citizen of the election district who may at any time demand the same. Upon the presentation thereof, to the tax collector of said district or the treasurer of the.; county, it is made the duty of such officer to receive the assessment tax from any person offering to pay the same for the soldier therein;, named and to endorse upon such certificate a receipt therefor. The said collector or county treasurer must receive the assessed tax from any person who may offer to pay the same for any of said soldiers, without requiring a certificate of assessment when the name of such soldier has been duly entered upon the assessment books and tax duplicates and he must give a receipt to such person specifically stating the name of the soldier whose tax is thus paid, the year for which it was assessed, and the date of the payment. The certificate! and receipt, or the receipt alone, is prima facie evidence to any military election board of the due assessment of the tax and its payment. : The election board, however, is not precluded from requiring other proof of the right to vote as specified by the act of 1864 or, by the general election laws.

If any of the assessors, collectors or treasurers neglect or refuse to perform their duties under this section, they are guilty of a misdemeanor and subject to fine.

The additional assessment, required by this section to be made in the City of Philadelphia, shall be made on application of any citizen of the election district or precinct thereof, upon the oath or affirmation of such citizen, to be administered by the assessor, that such absent soldier is a citizen of the election district or precinct wherein the assessment is required by such citizen to be made.

Sec. 40, Act of 1864, P. L. 990.

Note. It has been held in Philadelphia, that the assessment of a soldier may be made at any time and that it need not be on the days fixed for making the extra assessment. See Purdon, Vol. 2, Sec. 1374 footnote.

There is no doubt that this tax of ten cents provided by the above section for privates and non-commissioned officers, is a poll tax and the question arises whether the provisions of the above section authorizing the payment of such tax by a person other than the elector without an order from said elector, comes within the prohibition contained in the Act of July 15, 1897, P. L. 276. Section 1 of this act makes it unlawful.

"-for any person or persons to pay or cause to be paid any occupation or poll tax assessed against any elector, except on written and signed order of such elector, authorizing such payment to be made, which written and signed order must be presented at least thirty days prior to the date of holding the election at which such elector desires to vote."

Section 2 of the act makes it unlawful for any officer or other person authorized to collect taxes, to receive any such occupation or poll tax from any person other than the elector against whom the tax is assessed upon such order.

Section 3 makes it unlawful for any person to vote or attempt to vote at any election upon a tax receipt obtained in violation of the act.

As was stated by the court in contested election of William H. Thomas, 6 Lackawanna Legal News 227, the mischief which the act sought to remedy was the indiscriminate and wholesale payment of [toll or occupation taxes by campaign committees of the several political parties. This was indulged in to such an extent, particularly in the large cities, that thousands of the lowest class of voters were dependent for their right to vote on the taxes so paid for them, and their votes were thus virtually controlled by those who held the receipts. This practice became so notorious that no one can pretend ignorance of it and it was beyond question that it dictated the passage of the act.

It is obvious, that the mischief could apply to persons in the military service as well as others and it is not difficult to conceive how the vote of the soldier might be influenced if another person voluntarily " paid his taxes. As was stated in the Lackawana case, his vote would be absolutely at the mercy of the person who held the tax receipt and who would be in a position to deliver it to the soldier or withhold it from him in accordance with how he would cast his ballot. The Act of 1864 being in this respect both within the letter of the Act of 1897 and within its spirit, I am of the opinion that so much of section 40 of the said Act of 1864 as empowers a person to pay the tax of a soldier without a written signed order from such soldier, is repealed by the Act of 1897 and any person so endeavoring to pay said tax or any person attempting to vote on a tax receipt so procured, is subject to the penalty which the Act of 1897 provides. It is to be noted that this construction does not operate to disfranchise the soldier. He may still sign an order authorizing some person to pay his taxes of he may send his taxes direct to the treasurer of as was stated in the Lackawanna case, it is permissible under 'the act for the -wife of the soldier to pay his taxes out of money belonging to him. There is ample time, therefore, for the soldier to have his taxes paid. The form of an order above required has been drafted by this Department and has been furnished to the Secretary of the Commonwealth, so that he may have a sufficient number printed and distributed among the soldiers in ample time to accomplish this purpose.