(113 A.) voting for presidential electors and Senators and Representatives in Congress depends on federal law. The power of the state Legislature to authorize absent voting at elections for presidential electors and Senators and Representatives in the United States Congress is a question of federal law, and authority therefor must be found, if it exists, in the provisions of the federal Constitution. had been taken by an officer from a person 2. Elections 5-Power to authorize absent arrested for larceny, the court held that they were liable to garnishment in a civil action against the prisoner by the party who had suffered loss. The court said in its opinion: "It is our conclusion that the money and watch in question were lawfully taken from Lee by the officers, and when the garnishment process was served upon Gray were lawfully in his possession. We cannot convert the rules of law, intended for the protection of the person and property of the citizen, into instruments by which thieves and other felons may conceal their crimes and resist police officers in honest and commendable efforts to bring them to justice." In Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459, it was held that money taken from a prisoner in good faith was subject to attachment in the hands of the officer taking the same, and the court in its opinion said: "If this property had been separated from the person of the prisoner, or taken from his dwelling house, under authority of law, it is separated from his person and out of his house for all purposes. If this defendant rightfully and lawfully holds possession of the property in question, without having used force or fraud to obtain it, then when a writ is put into his hands, he may properly and lawfully attach it." [2] We think that the garnishments of the Liggett and Regal Companies are valid, and that the plaintiffs' replevin suits cannot be maintained. The defendant interveners' exceptions numbered 2 and 4 are sustained. The other exceptions of the defendants do not require consideration. As the conclusions which we have reached are decisive of the cases, the plaintiff's may appear before this court, if they shall see fit, on Wednesday, May 4, 1921, at 9 o'clock a. m., standard time, and show cause, if any they have, why these cases should not be remitted to the superior court with direction to enter judgment for return and restoration, 10 cents damages, and costs. (80 N. H. 595) In re OPINION OF THE JUSTICES. (Supreme Court of New Hampshire. March 16, 1. Elections 25-Legislature cannot authorIze absent voting for state offices. The Constitution requires the right of voting to be exercised by the voters in person at town meetings duly held for the purpose in the places of the state pointed out by the Constitution and at the times fixed by it, so that the Legislature cannot authorize absent voting for state officers. 3. Elections 5 Legislature can authorize absent voting for presidential electors. Under Const. U. S. art. 2, § 1, authorizing each state to appoint in the manner the Legislature directs presidential electors, and Rev. St. U. S. § 131 (U. S. Comp. St. § 199), pursuant to the Constitution, fixing the time only for such election, the state Legislature can authorize voting by absent voters at elections for such electors, since the manner of making their appointment is left to the Legislature. 4. United States 14-Congress alone can determine whether absent voting for Senators and Representatives is authorized. Since each house of Congress is judge of the elections and qualifications of its members, the question whether the presence of the voters at the polling place on election day is one of the qualifications of voters for the state Legislature is one which can be finally determined only by Congress. 5. Courts 208- Judges may give advisory opinion on questions courts could not adjudicate. Constitution is not limited to questions which The duty of the judges to advise under the may be adjudicated by the courts of the state, but may include questions which can be finally determined only by the United States Senate or House of Representatives. 6. Courts 208 Judges cannot advise affirmative action by Legislature unless power clearly exists. While a court will not declare a law duly enacted unconstitutional unless the conflict with the Constitution clearly appears, the judges cannot safely give advice which might induce affirmative action by the Legislature unless the legislative power clearly exists. 7. Courts 208-Judges will not advise that Legislature has power to authorize absent voting for Senators and Representatives. In view of the doubt as to whether the physical presence of the voters at the time of voting as required by the Constitution for election of state legislators is one of the qualifica tions of such electors and of the fact that the judges cannot decide that question, they will not advise the Legislature that it has power for Senators and Representatives in Congress. to pass a law authorizing absent voters to vote In the matter of the opinion of the Justices on questions by the House of Representatives as to its power to enact an absent voters law. Honored Sirs: At the direction of the House of Representatives, now sitting at Concord, in our state of New Hampshire, I submit herewith copies of a resolution adopted March 16, 1921, relating to Senate Bill No. 1, which pertains to absentee voters, and I respectfully request this honorable court at an early date to render its opinion upon the two questions contained in said resolution. Respectfully, Fred A. Jones. Speaker, House of Representatives. Resolved, that the Speaker of the House be and hereby is directed to obtain from the justices of the Supreme Court at the earliest date their opinions upon the following questions: (1) Does the annexed bill now pending in the House of Representatives contain any provisions in violation of the state or fed eral Constitutions? (2) If the annexed bill contains any provisions in violation of the state or federal Constitutions, can persons who on the day of the biennial election are absent from the towns in which they are qualified voters be authorized by the Legislature to vote, so that their votes will be valid and effective in the On account of physial disability I am unable to vote in person. (Signature.) (If in the service of the United States, the applicant may fill out the following:) I am in the military-naval-marinegovernment service of the United States, and my rank or official position is (Date.) (Signature.) We, the undersigned, a majority of the registrars of voters or inspectors or supervisors of the check lists of the of best of our knowledge and belief, appears hereby certify that the above signature, to the to be genuine, and that we believe said is a duly qualified voter in said ward city or town of -. Registers of voters or inspectors or supervisors of the check lists of the of the ballots specified in clause (a), bearing the (c) Envelopes of sufficient size to contain following: (This envelope contains an absent voter's ballot.) ballots specified in clause (a) on which shall Envelopes of sufficient size to contain the be printed the following: (Affidavit.) State of I, -, County of SS. same way as though they had voted at the qualified voter in the city or town of do solemnly swear that I am a polls in person? New Hampshire, in ward that there An act to permit absent voters and voters is at least one city or town intervening bewho by reason of physical disability are tween the city or town in which I am a qualunable to vote in person to vote at bien-ified voter and the place in which I now am; nial elections. Be it enacted by the Senate and House of Representatives in general court convened: Section 1. Any voter who on the day of the biennial election is absent from the city, town, or district, in which he is qualified to vote, or who by reason of physical disability is unable to vote in person, may vote in accordance with the provisions hereinafter set forth. Sec. 2. Prior to each biennial election the secretary of state shall prepare in such quantities as he may deem necessary the following papers: (a) Official absent voting ballots, similar in all respects to the official ballot to be used at such election, but printed on paper differing in color from that used for official or sample ballots. (b) Blank forms of application for such ballots, worded as follows: I, —, hereby apply for an official absent voting ballot. I am a legal resident of the city of in ward - or town of a duly qualified voter, and, as I believe, entitled to vote at the next biennial election. Mail absent voter's ballot to (Street and Number.) (City or Town.) (Signature.) (In case of a voter physically disabled, the that I have carefully read the instructions forwarded to me with the ballot herein inclosed, and that I have marked, inclosed and sealed the within ballot as stated hereon by the person taking my oath. (Signature.) the applicant will fill out the following :) (In the case of a voter physically disabled, State of I, SS.: do solemnly swear that I am a qualified voter in the city or town of New Hampshire, in ward -; that to vote in person; that I have carefully read on account of physical disability I am unable the instructions forwarded to me with the ballot herein inclosed, and that I have marked inclosed and sealed the within ballot as stated hereon by the person taking my oath. (Signature.) Subscribed and sworn to before me by the above affiant, personally known to me, this day of 19, in the city or town of state of , and I hereby certify that when I was alone with the affiant, the affiant in my presence marked the ballot without my seeing how he marked it, after which he sealed said ballot in this envelope. I had no communication with the affiant as to how he was to vote. (Seal, if any) Name Residence (Physician's certificate.) (113 A.) I,———————, of (address) hereby certify that I am the attending physician of the affiant, that I have made a careful examination and am satisfied that he is unable by reason of physical disability to vote in person. (Signature.) (d) Envelopes of size sufficient to contain the preceding, addressed to the clerks of the several cities and towns within the state, upon which shall be printed, "Inclosed is the ballot of an absent voter," and at the top thereof blank spaces for the name, address and voting place of the sender, with the words "name," "address," and "ward" appropriately printed thereon. (e) Copies of this act, with such explanatory matter and instructions as the secretary of state, with the approval of the Attorney General, shall decm appropriate to carry into effect the purposes of this act. Sec. 3. The secretary of state shall retain for his own use so many of the papers provided for in the preceding section as he may deem sufficient, and shall supply each city and town clerk in the state with as many of them as he may deem necessary. Sec. 4. The papers mentioned in clauses (b) and (e) of section two shall, as soon as they can be prepared, be mailed or delivered to any person who applies therefor to the secretary of state or to any city or town clerk. All other papers described in said section shall be mailed or delivered by city and town clerks, postage prepaid, to all voters who seasonably file the application set forth in clause (b) of said section. Sec. 5. The secretary of state shall obtain as soon as practicable the names, addresses, official rank or title, and the places where they are entitled to vote, of all qual ified voters in the military or naval service or marine corps of the United States, or in the civil or official service of the United States, or of this state, who by reason of such service are absent from the state. The adjutant general and all city and town officials are hereby required to give him all reasonable assistance that he may request for this purpose. To such voters he shall forward as soon as practicable the papers mentioned in clauses (a), (c), (d) and (e) of section two. Sec. 6. When an application for an official absent voting ballot is received by the clerk of a city or town, whether from the voters directly or through the secretary of state, it shall be transmitted by him to the registrars of voters or inspectors or supervisors of check lists of such city or town, who shall examine the same and, if they believe the signature thereon to be genuine and the person executing the signature to be a duly qualified voter, shall execute the certificate thereon and return the application to said clerk. The registrars of voters or inspectors, be placed on the voting list, opposite the name of each person registered as an absent voter, the letters in capitals A. V. If they find the person signing the application not to be a duly qualified voter, the city or town clerk shall send him written notice to that effect and shall preserve the application until the time set by law for the destruction of ballots cast in the coming election, at which time said application shall also be destroyed. The clerk shall keep lists of the names and addresses, arranged by voting places, of all voters filing applications for absent voting ballots, and shall post copies of the same for public inspection. Sec. 7. A voter who has executed and filed an application for an official absent voting ballot with the clerk of the city or town in which he is a qualified voter, after his application is certified as provided in the preceding section or in the case of a voter coming under the provisions of section 5, may vote by mailing or causing to be delivered to such city or town clerk an official absent voting ballot, prepared under the provisions of section two. He shall mark said ballot in the presence of an official authorized by law to administer oaths, and of no other person, and, except in the case of a voter physically disabled, in a city or town which is separated by at least one city or town from the city or town wherein the voter is registered. He shall deliver the official ballot to said official, who shall satisfy himself that it is unmarked, and the voter shall not allow said official to see how he marks it. Said official shall hold no communication with the voter, nor he with said official, as to how he is to vote. After marking the ballot, the voter shall inclose and seal the same in the envelope provided for in clause (c) of section two. He shall then execute before said official the affidavit on said envelope as set forth in said clause (c), and shall inclose and seal the envelope containing the ballot in the envelope provided for in clause (d) of section two, indorse thereon his name, address and voting place, and shall then mail the envelope, postage prepaid or cause it to be delivered. Sec. 8. Upon receipt of an envelope purporting to contain an official absent voting ballot (with the exception of ballots from voters coming under the provisions of section 5), the clerk of the city or town shall attach thereto the application for an official absent voting ballot executed by the voter whose name appears thereon and certified by the registrars of voters or inspectors or supervisors of the check lists. All such envelopes shall be preserved unopened. Upon election day before the hour for the closing of the polls the said clerk shall deliver all envelopes received by him to the moderators in the several voting precincts in which the voters named therein assert the right to vote, tak any writing or affidavit required herein, nor by reason of any variation between absent voters' ballots and ballots in use by voters present. Sec. 12. An absent voter who is unable to mark his ballot may have it marked for him by a notary public, a justice of the peace, or a sworn election official, who shall add in writing to the jurat a statement of the fact that the voter is unable to write, stating the reason therefor, and shall sign the voter's name on both envelopes. Sec. 13. All envelopes received by clerks of cities and towns after the closing of the by them unopened until the time set by law for the destruction of ballots cast at the state election, at which time the envelopes shall likewise be destroyed, unopened and unexamined. No absent voter's ballot shall be cast or counted unless it be delivered to the moderator at the proper polling place prior to the closing of the polls on the day of the election. Sec. 9. Immediately after the closing of the polls, and before the ballots cast have been removed from the ballot box, the moderator in each polling place shall open all envelopes delivered to him under the provisions of the preceding section, and shall compare the signatures on the envelopes therein inclosed with the signatures on the applications attached thereto, except in the case of ballots prepared under the provisions of section twelve, and shall examine the af-polls on the day of election shall be retained fidavits. If the affidavits are properly executed and if the affidavits sufficiently disclose that the ballots were executed and mailed or delivered in accordance with the provisions of this act, and if the signatures on the affidavits appear to be executed by the same persons who signed the applications, and to be the signatures of duly qualified voters who have not voted at the election, he shall make public announcement of the names of the absent voters, open the envelopes in such manner as not to destroy the affidavits thereon, take out the ballots without unfolding them or permitting them to be opened or examined, and, after checking the names of the absent voters on the voting list, shall deposit the ballots in the ballot box. If he finds an envelope to bear an affidavit improperly executed, or not signed by the person who signed the accompanying application, or if the voter whose name appears thereon is not a qualified voter or has voted in person, he shall not open the envelope, but shall mark across the face thereof "Rejected as defective," "Rejected as not a voter," "Voted in person," as the case may be. All envelopes, opened or unopened, shall be retained with the ballots cast at the election, and preserved and destroyed in the manner provided by law for the retention, preservation or destruction of official ballots. Sec. 10. All absent ballots received shall be subject to challenge prior to removal from their envelopes for noncompliance with this act or for any reason allowed by applicable provisions of existing law, and if challenged there shall be indorsed on the envelope thereof by the moderator, the word "Challenged" with the name and address of the voter who makes the challenge. If the moderator is satisfied the challenge is well grounded the ballot shall not be removed from its envelope and shall not be counted but shall be preserved with the other ballots; otherwise it shall be opened and indorsed with the name of the voter by the moderator and cast as other ballots. Sec. 11. No ballot transmitted under the provisions of this act shall be rejected for any immaterial addition, omission or irregularity in the preparation or execution of Sec. 14. Nothing herein contained shall prevent a voter who has mailed or delivered a ballot under the provisions hereof from voting in person. No ballot mailed or delivered under the provisions hereof shall be counted if the officers charged with the duty of counting the same are cognizant of the fact that the voter has died prior to the opening of the polls on the day of election. Sec. 15. Any soldier, sailor or marine voting as herein permitted, may substitute for the required jurat and transmit with the sealed ballot, a written statement in such form as the secretary of state shall prescribe, setting forth the facts required, made by any one of his superior officers of a rank in the army or marine corps higher than first lieutenant, and in the navy higher than lieutenant of the second grade. Sec. 16. The secretary of state shall prepare for the use of election officials, city and town clerks and registrars of voters and inspectors and supervisors of the check lists such printed information and instructions, subject to approval by the Attorney General, as he may deem proper to facilitate the operation of this act. Such printed matter shall be transmitted to said officials prior to each state election. The secretary of state is further authorized to prepare and distribute subject to like approval, such general information relative to this act as he may deem expedient. Sec. 17. Any justice of the superior court shall have jurisdiction in equity upon such notice as he may order, to require the certification of any application for an absent voting ballot which the registrars of voters or inspectors or supervisors of the check lists have unreasonably refused to certify; the superior court shall have jurisdiction to order the counting of any ballots improperly rejected, or to enjoin the counting of any ballot which cannot reasonably be identified as the ballot of a person lawfully entitled to vote as herein provided, or which was not cast in accordance with the provisions of this act, (113 A.) provided that no proceeding under this act | stitutional amendment the Legislature has shall be begun later than the date fixed by power to provide as proposed. That such law for the final canvass of any votes cast power does not exist was settled nearly 50 under this act for candidates for state offi- years ago not only in this state, but in others with similar constitutional provisions as to all offices created by the several state Constitutions. ces. In June, 1863, an act was pending in the Legislature entitled "An act to secure the Sec. 18. Whoever, prior to the closing of the polls upon election day shall show or exhibit an unsealed absent voter's ballot to any person other than an official authorized to administer the oath required by section | right of suffrage to the qualified voters of seven of this act, or shall use an absent voter's ballot for any purpose except to vote the same, shall be punished by a fine of not more than one hundred dollars; provided. however, that this provision shall not apply to any person engaged in printing or distributing or otherwise dealing with said ballots according to law, and whoever, not being entitled to vote under the provisions of this act votes or attempts to vote under the provisions hereof, or whoever being entitled to vote under the provisions of this act, knowingly votes or attempts to vote in violation of the terms thereof, or whoever being an official trusted with the execution of this act willfully violates any provision thereof, or any physician issuing a false or fraudulent medical certificate, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year or both. Sec. 19. Chapter 95 of the Session Laws of 1917 and all amendments thereto and all acts and parts of acts inconsistent with this act are hereby repealed and this act shall take effect upon its passage. Fred C. Demond, for the bill. To the House of Representatives: this state engaged in the military or naval service of their country," and the opinions of the justices were required as to its constitutionality. This act is identical in principle with the law now proposed. It authorized the exercise of the right of suffrage by electors who are not present at the polls; provided for prior preparation of the ballot by the voter and the presentation of the ballot to the moderator in the meeting by an attorney duly appointed by the voter, while the proposed act requires the ballot similarly previously prepared by the voter to be presented to the moderator by the town clerk to whom the ballots are to be transmitted by the voters. This law, the justices advised, was beyond the power of the Legislature because the Constitution as they construed it required "that the right of voting shall be exercised by the voter in person at the meeting duly held for the purpose in the places of the state pointed out by the Constitution, and at times in accordance with its provisions." Opinion of Justices, 44 N. H. 633, 636. For other authorities reaching the same result, see Opinion of Justices, 30 Conn. 591; Opinion of the Judges, 37 Vt. 665; Chase v. Miller, 41 Pa. 403; Day v. Jones, 31 Cal. 261; Bourland v. Hildreth, 26 Cal. 161; People v. Blodgett, 13 Mich. 127. In Morrison v. Springer, 15 Iowa, 304, sustaining a statute for the same purpose, but with different provisions, the court ex The pending bill which is submitted for our consideration appears to be modeled upon a recent Massachusetts statute. Laws Mass. 1919, c. 289. The Massachusetts act seems to have been adopted under a recent amend-pressly approve the opinions expressed by the ment of the Constitution of that state: "The general court shall have power to provide by law for voting by qualified voters * who, at the time of an election, are absent from the city or town of which they are inhabitants in the choice of any officer to be elected or upon any question submitted at such election." Article 45, Amendment Const. Mass. The purpose of the proposed legislation is to authorize the exercise of the right of suffrage at our biennial elections by electors who are not present at the polls either because of absence from the municipality in which the election is held or because of physical disability. In the latter provision the bill goes beyond the Massachusetts act or the constitutional amendment by which the legislation of that commonwealth is authorized. [1] The inquiry submitted is whether in the absence of power expressly given by con justices of this court. Since 1863 it had been understood (as said by Ladd, J., in Copp v. Henniker, 53 N. H. 179, 193), "that the right of suffrage established by the Constitution could not be exercised by proxy." We are not able to answer the considerations by which the conclusions of the justices were supported in 1863. Counsel who have appeared before us in behalf of the proponents of the bill concede that it is beyond legislative power as to state officers. We therefore are constrained to advise the House of Representatives that the right of suffrage given by the Constitution cannot be exercised by proxy; i. e., by electors not present at the meeting. The occasion for legislation of this character in 1863 was the absence of many voters in the service of the army or navy of the United States during the Civil War. The difficulty was met in some states by constitutional amendment. Similar amendments have since been adopted in other states. Bul |