the section: State v. Denny (1888), 118 Ind. 449; Baldwin v. Franks (1887), 120 U. S. 678; Norton v. Shelby Co. (1886), 118 U. S. 425. The conclusion we have reached being in harmony with the holding of the Circuit Court, it follows that the judgment must be affirmed.

Judgment affirmed, with costs.

ELLIOTT, J., (concurring.) The questions for decision, although they arise on a single section of a statute, are of the greatest importance, inasmuch as they concern the highest right of citizenship; and it is, therefore, not improper that separate opinions should be expressed. No other questions face us except such as arise upon section thirteen of the election law of 1889, and the decision of those questions does not affect other provisions of the Act, nor can it do so, for the section is an independent one, and its downfall carries no other part of the Act. Nor do I deem it necessary for us to decide whether there are not some provisions of the section which, if separated, and put in proper form, might not be valid, for the entire section, with its provisions interlocked beyond the power of severance, is before us for judgment, and we can only give judgment upon the section as it is written: Griffin v. State (1889), 119 Ind. 520; Baldwin v. Franks (1887), 120 U. S. 678.

It is proper to say, by way of introduction, that the question is what a Legislature may do, acting under a written Constitution which gives it all the power respecting the right of suffrage that it possesses, and not what may be done by Congress or by a Territorial Legislature acting under a law of Congress, nor what may be done by the people in framing or amending a Constitution.

The thirteenth section of the act of 1889, construed as I think it must be, requires one who has not resided for six months in the county where he claims the right to vote, to register his intention to become a voter ninety days before the election, thus requiring of the citizen two things, namely: That in order to be entitled to register he shall have resided in the county six months; and that he shall register his in

tention to become a voter ninety days before the election. He is required by these provisions to reside in the county in order to acquire the character of a voter a much longer time than the Constitution requires, for it requires a residence of only sixty days. It is entirely safe to affirin that no one will question the proposition that the Legislature has no power to require a longer residence than that fixed by the Constitution. The affirmation of this proposition leads, beyond the possibility of cavil, to the conclusion that the provisions referred to are utterly destitute of force. There are, however, other objections to the validity of section thirteen which seem to me to be insurmountable, and these objections go to the entire section, as its provisions are so interwoven as to be incapable of severance, and are, to my mind, so palpable that it is impossible to avoid perceiving them or to escape their force.

It may not be improper to preface the direct statement and discussion of these objections by affirming that it is not because the Legislature does not possess power to enact a general registry law that section thirteen is invalid, for no one who studies the language of the Constitution, or heeds the history of the amendments of 1881, can doubt that it was the purpose of the people to invest the Legislature with power to enact a general registry law. But, while this is true, it is also true that no other conclusion will square with the judgments of candid men than this: The Legislature can enact only such a law concerning the right of suffrage as the Constitution authorizes. This, therefore, is the central question: Is the thirteenth section of the election law of 1889 such an enactment respecting the right of suffrage as the Constitution authorizes? The question is one of power. If the Constitution authorizes such enactments as those contained in section thirteen, the power exists, and the section must stand; if the Constitution does not authorize such a law, the power does not exist, and the section must fall. With questions of policy or expediency the courts have nothing to do, but it is their duty to determine whether there is or is not power to enact such a law.

The power which the General Assembly assumed to exercise, is not an ordinary legislative power, for, in assuming to legislate upon the subject of the qualifications of voters, that body entered into the domain of those in whom the original power resides, and from whom all legislative powers are derived. The people control the subject of the right of suffrage, and legislative assemblies have only such power over that subject as the people have granted them by the organic law. That the Legislature cannot add to the qualifications of voters is a proposition upon which there is no diversity of opinion: Cooley, Const. Lim. 78. It would be strange, indeed, if the Legislature could add qualifications to those prescribed by the Constitution, for the right of suffrage is a political right, and it is the right of a sovereign. The people are above the Legislature, and they are there because the Legislature has no power to abridge or qualify the sovereign right of suffrage.

Section thirteen violates the Constitution by assuming to classify the voters of the State, and by adding qualifications to those prescribed by the Constitution. It assumes to divide the voters into taxpayers and nontaxpayers, and to add to the requirements of the Constitution, the requirement that the citizen shall be recorded as a taxpayer. It violates the Constitution, by assuming to classify voters into those who remain continuously in the State, and those who temporarily absent themselves from it. Where the Constitution makes a classification, a different one cannot be made by the Legislature. Our Constitution does make a classification, for it specifically provides who shall be eligible to vote. Where the Legislature exercises the power conferred upon it, and enacts a registry law, then legislation is essential to qualification; but where there is no such law, registration cannot be made essential, for in the absence of a registry law the sole qualifications of a voter are citizenship, age and residence. The General Assembly has no power to enact a law operating through a classification exclusively its own. This is indeed, a corollary of the proposition that it has no power to classify voters except by following the Constitution.

Under

the Constitution, the Legislature has power to make two classes, registered and unregistered, but it cannot create a third class: Attorney General v. City of Detroit [decided in the Supreme Court, Michigan, Dec. 28, 1889]. If the power to classify exists in one case it exists in all. No one will deny that if the Legislature has power over a subject, it is master of its own discretion, and may enact any law it chooses. Grant the power, and the discretion is unlimited. If the Legislature has power to make the classification attempted in section thirteen, then it may provide that only naturalized citizens shall register, or that farmers shall register, and no others, or that commercial travelers, temporarily absent in the line of their business, shall make affidavits, and record their names, although such things may be required of no other citizen. In short, if the power exists, the Legisla ture may make any classification it pleases. To my mind it is perfectly clear that it can do no such thing. It cannot, in any form, classify the fundamental political right of suffrage except as the Constitution expressly authorizes it to do. Such a right is infinitely higher than legislative authority can climb. No matter what form legislation may assume, it is utterly void if it touches upon the right of suffrage in a mode not authorized by the Constitution. The name given the legislation adds nothing, for a name can no more change its substance than a name can change the odor of a rose.

The provision of section thirteen assuming to impose upon a citizen who has resided in the State for the period prescribed by the Constitution, the duty of making an affidavit declaratory of his intention to become a voter, is in violation of the Constitution; and so, too, is the provision which assumes to require a citizen who has been temporarily absent to swear that he has not voted elsewhere. A citizen who does what the Constitution requires, cannot be required to do more. If he fixes his character as a voter by a residence for the time designated by the Constitution, the incidents inseparably connected with that character are beyond legislative touch. The principle here asserted has been de clared by our own, and by other courts. We must adhere

to it or overrule our own decisions, and disregard those of other states: Quinn v. State (1871), 35 Ind. 485; Feibleman v. State (1884), 98 Ind. 516; Rison v. Farr (1865), 24 Ark. 161; Davies v. McKeeby (1870), 5 Nev. 369.

It is no answer to many of the propositions I have affirmed, to assert that the classification attempted is valid because all who belong to a designated class are put upon an equality; so that, if it were conceded that the assertion responds to some of the propositions affirmed, and is valid, the act nevertheless remains undefended, for any one of the propositions affirmed is fatal to its validity. But it cannot be justly conceded that the classification is valid. When the question is examined it will be found that the proposition that the equality of the classification rescues it from condemnation has not the poor merit of plausibility. It is, indeed, so thinly appareled even in plausibility that when brought to the touchstone of principle all semblance of strength vanishes. The General Assembly has no power to classify voters except as the Constitution provides, no matter what system it may adopt. This is so for the invincible reason that the prerogative of conferring and defining the right of suffrage is that of constitution makers, and not that of the creatures of constitutions. The electors who frame constitutions, and give being and power to Legislatures, are above the created things, and legislators cannot reach above themselves to the source of their power, and the authors of their existence, for the purpose of enlarging or restricting the sovereign right of suffrage. If it were otherwise legislators would be the masters, and masters they are not. If the Legislature can limit or even define the right of suffrage then it is greater than its constituency; but it can do nothing of the kind, for the right of suffrage is not subject to legislative power. The right of suffrage is a political right of the highest dignity. It is a right of which, as the Courts have declared, no department of government, nor all of them combined, can divest the citizen otherwise than in the mode, and to the extent, expressly authorized by the Constitution: State v. Adams (1829), 2 Stew. (Ala.) 239.