The election was to be held under the charge of the three highest officers, who were to be sworn to the faithful performance of their duties under the act. The votes were to be certified, sealed up and transmitted to the Secretary of State at Sacramento and counted in the same manner as other votes cast in the State at that election.1

The act then provided that on the day fixed by law for holding the State election, and also for choosing electors for President and Vice-president for the year 1864, and "for every general election thereafter during the war in which the national government is now engaged," a ballot box should be provided, and an election be held in the field in the manner provided in the act.

In October, 1864, the validity of this statute was brought in question in the suit of Bourland vs. Hildreth.2 At the general election held in September, 1864, certain county officers were voted for by soldiers in the field. The Board of Supervisors in canvassing the votes counted these votes of soldiers, and declared the election upon the votes cast including those cast by soldiers in the field. The question of the validity of the vote then went to the County Court, which excluded the votes cast by the soldiers and declared the other candidates elected. From this judgment of the County Court there was an appeal to the Supreme Court, and the decision was rendered at the October term, 1864. There were five judges and four opinions, two for the law and two against it. The two which represented three judges held that the law was unconstitutional, upon the ground that the Constitution fixed the place of voting so that the

1 Statutes of California, 1863-4, p. 279.

2 Bourland vs. Hildreth, 26, Cal. 161.

Legislature could not change it, that is, the Constitution provided where the right of suffrage should be exercised, and the Legislature could not prescribe that it should be exercised anywhere else. It took the two judges forty-seven printed pages in the reports to announce their conclusion, which may perhaps be stated in their own language: "We are unable to come to any other conclusion than that the limits within which the rights of suffrage may be exercised, are fixed by the Constitution, and that the elector must claim his vote in the county or the district in which he has his residence."

Sanderson, C. J., gave a dissenting opinion of thirty-six printed pages in the reports, and Curry, J. also dissented in an opinion of one page, both holding that the Act was constitutional.

Sanderson said that the validity of the act was discussed at the time of its passage, and that the act of the Legislature under such circumstances should not be held invalid unless it was entirely clear that it was contrary to the Constitution, and he held that the language of the California Constitution in the light of its previous construction (and he cited many statutes bearing upon that) did not prescribe the place of voting, but left that place, as well as the time of voting, to the Legislature to be fixed from time to time in such way as they thought best.

Curry in his dissenting opinion said that the words of the Constitution prescribed the qualification of the elector, and not the place where the elector should vote; that the subject of the place at which the right to vote must be exercised is not fixed by this, or any other provision of the Constitution. The result was that the soldiers' voting act of 1863 was held unconstitutional.

In 1864 there were cast under this act 2,600 votes for Lincoln, and 237 for McClellan, a total of 2,837 or a little less than three per cent of the total vote of the State which was 105,975.1

March 17, 1866, the soldiers' voting act of 1863 was repealed.2

1 House Journal, 1864, p. 447; Senate Journal, 1864, pp. 545, 546.

2 Statutes California, 1866, C, 251.

IN

CHAPTER XVII

NEW YORK

N the State compaign in New York in 1862, between Horatio Seymour and General Wadsworth, for Governor, the propriety of passing a statute which would enable soldiers to vote in the field, was discussed, and if General Wadsworth had been elected he doubtless would have recommended the Legislature to pass such a statute. But Seymour was elected and although in his annual message he discussed national affairs at unusual length and with great freedom, bitterly criticizing the administration in its conduct of the war, he made no reference to a soldiers' voting law, nor did he communicate with the Legislature by any special message recommending such a law.

A bill was introduced however on February 10, 1863, in the Assembly to authorize volunteer soldiers to vote in the field, which with other bills for the same purpose was referred to the Judiciary Committee. On April 8, the Judiciary Committee reported in the Senate a bill entitled "An Act to Secure the Elective Franchise to the Qualified Voters of the Army and Navy of the State of New York," and recommended its passage. On April 10, it was amended in various particulars and passed by a vote of 19 to 7. The bill then went to the Assembly.2 On April 13, the Governor sent a message to the Legislature, in which he said, "The question of

1 Assembly Journal, 1863, pp. 195, 205, 537, 869.

2 Senate Journal, 1863, pp. 351, 367, 381, 395.

a method by which those of our fellow-citizens who are absent in the military and naval service of the nation may be enabled to enjoy their right of suffrage, is a question of great interest to the people of this State, and has justly excited their attention." He then pointed out objections to any bill not based upon a constitutional amendment, saying, that in case the legislation was not so guarded as to protect the soldiers in the exercise of their rights, "the flames of civil war will be kindled in the North"; and that he had "noticed with deep regret attempts on the part of some of the officers of the national government to interfere with the free enjoyment of their political opinions by persons in the army."

On April 14 the Senate passed the following resolution:

"Resolved, That the Attorney General be requested to examine Senate bill No. 300, entitled 'An act to secure the elective franchise to the qualified voters of the army and navy of the State of New York.' And that he be requested to inform the Senate whether in his opinion the bill is in conflict with the Constitution, and whether any amendment to the Constitution is necessary to secure the elective franchise to such voters while absent from the State." 1

On April 15 the Attorney General sent to the Senate an opinion that the bill was constitutional. He said:

"The question is, whether the actual presence of the elector is required by the Constitution, or whether the Legislature may authorize the deposit of his vote while he yet continues in service abroad.

1 Senate Journal of the State of New York, 88th Session, p. 565.