71 Miss. 1 | Miss. | 1893
delivered the opinion of the court.
Complying with the wishes of counsel, we proceed, without question as to the propriety of this particular proceeding, to consider the questions presented by it. They are:
First. — Does the fact that an election has been ordered under § 1610 of the code of 1892 stop the registration of electors until after it is held, because of the provision of the constitution, § 251, that “ electors shall not be registered within four months next before any election at which they may offer to vote,” etc., and § 3615 of the code of 1892, which directs that “ at any time not within four months of an election, the registrar may register the electors of his county, at his office,” etc. ?
Second. — Does the fact that an applicant for registration as an elector has not paid taxes for the two preceding years, although possessing the required qualifications as an elector other than this, preclude his registration as such ?
Third. — Are the persons registered within four months of an election to be held under § 1610 of the code of 1892, entitled lo vote, if otherwise qualified ?
We answer each question in the negative. Neither the constitution, in § 251, nor the code, in § 3615, had reference to an election held in pursuance of § 1610, but to elections contemplated by the constitution. The election provided for by § 1610 is not an election, in the sense of the constitution or the law on the subject of registration and elections, constituting chapter 113 of the code of 1892. It is a special
The payment of taxes is not a condition of registration, but of voting. It is not a matter for the registrar, but for “ the officers holding the election.” An applicant for registration is not required to satisfy the registrar that he has paid taxes, but he must satisfy the “ officers holding the election” that he has paid the taxes required as a condition for voting. One possessing the requisite qualifications, as prescribed by the constitution, may be registered. Payment of taxes is not one of these qualifications. Registration and the right to vote are distinct things. One is not qualified to vote if no; duly registered; but being duly registered does not entitle him to vote. It is an essential prerequisite, but does not qualify to vote. It is that without which all other qualifications to be an elector go for nothing, but it is not sufficient to entitle one to vote. Registration is not made by the constitution or law even primo, facie evidence of the right to vote. That is to be passed on by the officers holding the election, who are made “judges of the qualifications of electors.” They would reject the ballot of one who had not been registered, and should not receive the ballot merely because the person offering it had been registered. They must judge of the qualifications of electors offering to vote, of which one necessary thing is registration.
The constitution, § 241, prescribes the qualifications of an
The constitution provides, in § 242, that “ the legislature shall provide, by law, for the registration of all persons entitled to vote,” and prescribes the oath to be taken by such persons, but makes no reference in the oath to payment of taxes. Any provision by law for the registration of persons entitled to vote must conform -to the constitution, and not contravene it. So much of § 3612 of the code of 1892 as forbids the registration of a person who has not paid all taxes, etc., is not in harmony with the constitution, but in violation of it, by imposing, as a condition of being registered, what the constitution has made a condition of voting. It confounds a plain distinction made by the constitution, and denies to one, entitled by the constitution to be registered, the right to be registered. This requirement is therefore illegal and void.
It is a noticeable fact, worthy of observation, that the only reference of the constitution, in any of its multitudinous provisions, to payment of taxes, in connection with qualified electors or voting, is in § 241, where the express requirement is that the payment of taxes shall be with reference to the year in which he shall offer to vote, and that satis
While the occurrence of a special election within four months after registration does not invalidate registration, and the fact that such an election has been ordered and is to occur does not affect the right to be registered, persons registered are not entitled to vote at an election held within four months after their being registered. Section 251 of the-constitution declares that “electors shall not be registered within four months next before any election at which they may offer to vote” — not that registration shall not be had within four months of an election, but it must be one at which the elector offers to vote. Whether or not one will offer to vote is a future event. The effect of the singular form of expression employed by this section must be, from the nature of things, not to prohibit registration within four months of an election, but to establish the rule that four months shall elapse between one’s registration and his right to vote. There is nothing in the constitution inhibiting being registered at any time, even on the day of an election ; but it does-declare, in effect, that, although registered, one shall not vote at an election held within four months of his registration. This is the rule established for elections contemplated by the constitution. The statutes providing for an election to deter-
It results from these views that the registrar was improperly ordered to desist from registering any persons until after the election to be held on October 14, 1898, and to refuse to register at any time such as had not paid certain taxes; but that persons registered within four months of the election will not be entitled to vote thereat, even though otherwise qualified.
The learned circuit judge failed to draw the proper distinction between the right to register and the right to vote, as the legislature did, and erroneously assumed the validity of § 3612 of the code of 1892, wherein we have shown it to be unconstitutional and void.
The judgment is reversed, and the petition for mandamus is dismissed.