may be resorted to for the purpose of gaming;1 or forbid altogether the keeping of implements made use of for unlawful games; or prevent the keeping and exhibition of stallions in public places.2 And the power to provide for the compulsory observance of the first day of the week is also to be referred to the same authority.3

So the markets are regulated, and particular articles allowed to be sold in particular places only, or after license; weights and measures are established, and dealers compelled to conform to the fixed standards under penalty, and persons following particular occupations of a nature requiring special public supervision, such as auctioneers, draymen, hackmen, hucksters, victuallers, and the like, are required to take out licenses, and to conform to such rules and regulations as are deemed important for the public convenience and protection. These instances are more than sufficient to illustrate the pervading nature of this power, and we need not weary

1 Tanner v. Trustees of Albion, 5 Hill, 121; Commonwealth v. Colton, 8 Gray, 488; State v. Hay, 29 Me. 457; State v. Freeman, 38 N. H. 426. Nolin v. Mayor of Franklin, 4 Yerg. 163. A city may forbid the keeping of swine within its densely settled portions. Commonwealth v. Patch, 97 Mass. 221. /

3

Specht v. Commonwealth, 8 Penn. St. 312; City Council v. Benjamin, 2 Strobh. L. 508; State v. Ambs, 20 Mo. 214; St. Louis v. Cafferata, 24 Mo. 94; Adams v. Hamel, 2 Doug. (Mich.) 73; Vogelsong v. State, 9 Ind. 112; Shover v. State, 5 Eng. 259; Bloom v. Richards, 2 Ohio, N. s. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Hudson v. Geary, 4 R. I. 485; Frolickstein v. Mobile, 40 Ala. 725.

4

Nightingale's Case, 11 Pick. 168; Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347; State v. Leiber, 11 Iowa, 407; Le Claire v. Davenport, 13 Iowa, 210; White v. Kent, 11 Ohio, N. s. 550. The power is continuing, and markets once established may be changed at the option of the authorities, and they cannot even by contract deprive themselves of this power. Gale v. Kalamazoo, 23 Mich. 344; Gall v. Cincinnati, 18 Ohio, N. s. 563; Cougot v. New Orleans, 16 La. An. 21.

5 Guillotte v. New Orleans, 12 La. An. 432; Page v. Fazackerly, 36 Barb. 392; Raleigh v. Sorrell, 1 Jones, L. 49; Dillon, Mun. Corp. §§ 323, 324, and cases cited.

• Commonwealth v. Stodder, 2 Cush. 562; Dillon, Mun. Corp. §§ 291–296. As to license fees, and when they are taxes, see ante, 201, 495; Mayor, &c., of Mobile v. Yuille, 3 Ala. 139. The sale of pure milk and pure water mixed may be made a penal offence. Commonwealth v. Waite, 11 Allen, 264. As to market regulations in general, see Wartman v. Philadelphia, 33 Penn. St. 202; Spaulding v. Lowell, 23 Pick. 71; Gall v. Cincinnati, 18 Ohio, N. s. 563; Municipality v. Cutting, 4 La. An. 335; Dillon, Mun. Corp. §§ 313-318.

the reader with further enumeration. Many of them have been previously referred to under the head of municipal by-laws.

Whether the prohibited act or omission shall be made a criminal offence, punishable under the general laws, or subject to punishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right which, but for the

* regulation, he might have had against other persons, are [* 597] questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive and varied regulations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property.

[ 701 ]

[* 598]

CHAPTER XVII.

THE EXPRESSION OF THE POPULAR WILL.

ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands a power to control the governments they create so far as they have thought it needful to do so, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, in their sovereign capacity, can only be of legal force when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for them by the legislature; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government.1

"The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government, the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centred in their chosen representatives.” Davis, Ch. J., in Gibson v. Mason, 5 Nev. 291.

Under some of the constitutions certain votes can only be carried by a majority of the electors voting favorably. This must be understood to mean, a majority of those voting at the election on any question. Taylor v. Taylor, 10 Minn. 107. Compare Gillespie v. Palmer, 20 Wis. 544; State v. Mayor, &c., 37 Mo. 270; State v. Binder, 38 Mo. 450; Bayard v. Klinge, 16 Minn. 249.

ernment.

The authority of the people is exercised through elections, by means of which they choose legislative, executive, and judicial officers, to whom are to be intrusted the exercise of powers of govIn some cases also they pass upon other questions specially submitted to them, and adopt or reject a measure according as a majority vote for or against it. It is obviously impossible that any considerable people should in general meeting consider, mature, and adopt their own laws; but when a law has been perfected, and it is deemed desirable to take the expression of public sentiment upon it, or upon any other single question, the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by submitting such law or such question for an affirmative or negative vote. In this manner constitutions and amendments thereof are adopted or rejected, and matters of local importance in many cases, like the location of a county seat, the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and determined by the people whom they

*

concern, under constitutional or statutory provisions [* 599] which require or permit it.

The Right to participate in Elections.

In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elective franchise.1 Each State establishes its own regulations on this subject; subject only to the fifteenth amendment to the national Constitution, which forbids that the right of citizens to vote shall be denied or abridged on 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. Aliens are generally excluded, though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain

1 Ante, p. 29.

specified grounds, and it is matter of public history that its purpose was to prevent discriminations in this regard as against the newly enfranchised slaves. Minors, who equally with adult persons are citizens, are still excluded, as are also women, and sometimes persons who have been convicted of infamous crimes. In some States laws will be found in existence which, either generally or in particular cases, deny the right to vote to those persons who lack a specified property qualification, or who do not pay taxes. In some States idiots and lunatics are also expressly excluded; and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women, minors, and aliens from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision.2 Wherever the constitution has prescribed the qualifications of electors, they cannot be changed or added to by the legislature, or otherwise than by an amendment of the constitution.

One of the most common requirements is, that the party offering to vote shall reside within the district which is to be affected by the exercise of the right. If a State officer is to be chosen, the voter should be a resident of the State; and if a county, city, or township officer, he should reside within such county, city, or

1 Story on Const. 4th. ed. § 1972.

2 See Cushing's Legislative Assemblies, § 24. Also § 27, and notes referring to legislative cases. Drunkenness is regarded as temporary insanity. Ibid. Idiots and lunatics are expressly excluded by the Constitutions of Delaware, Iowa, Kansas, Maryland, Minnesota, Nevada, New Jersey, Ohio, Oregon, Florida, Alabaina, Arkansas, California, Georgia, Mississippi, South Carolina, Texas, Rhode Island, West Virginia, and Wisconsin. Paupers are excluded in New York, California, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Delaware, Texas, Wisconsin, and West Virginia. Persons under guardianship are excluded in Kansas, Maine, Massachusetts, Minnesota, Florida, Maryland, Rhode Island, and Wisconsin. Persons under interdiction are excluded in Louisiana; and persons excused from paying taxes at their own request, in New Hampshire. Capacity to read is required in Connecti

cut, and capacity to read and write in Massachusetts.

3 See Green v. Shumway, 39 N. Y. 418; Brown v. Grover, 6 Bush, 1; Quinn v. State, 35 Ind. 485; Huber v. Reiley, 53 Penn. St. 112; ante, 64, note 3. Compare State v. Neal, 42 Mo. 119. Where a disqualification to vote is made to depend upon the commission of crime, the election officers cannot be made the triers of the offence. Huber v. Reiley, supra; State v. Symonds, 59 Me.

151.