*1 N. NALL TERM, 0.]
Pace Raleioh. v.
PACE v. RALEIGH. (Filed 1905). 28, November Poll Tax— Registered Qualifications—Payment Voter— Registration —Elections. 7, 233, 1903, “It chapter provides
1. Under that section Laws town, duty governing body any city upon shall be the therein, petition registered voters who were one-third of the election, to order an elec- preceding municipal for the tion,” who, petition, persons those are entitled necessary being registered, lawfully upon possessing besides (if liable for qualifications, have further Constitution). V, 1, of tax under Act section Assembly proper terms as it thinks prescribe 2. The General can such ordering an election. prerequisite JJ., dissenting. Walker, Brown and tbe J. M. Pace and others State ex. rel. against
ActioN Court of the Superior Wake, City pending Raleigh, Justice, Chambers at Raleigh, and heard M. H. at by Judge pleadings the 27th of upon September, admissions of the parties. for a mandamus. plaintiffs
This was an application aldermen of board of and others presented petition de- be called to an election City Raleigh asking licensed in said city should be termine whether saloons City existing in lieu of the liquor the sale intoxicating was re- whom the petition The committee to Dispensary. books on the found registration
ferred reported had moved 238 of those registered but that 1,826 names, names. valid 1,568 died, and 35 had leaving from the manner petition in the same That after purging died there remained had removed or the names of those ascer- reference to further 543 names. Upon on the books and tain how of those many 140 —5 IN THE SUPREME COURT. *2 were entitled to vote petition respectively by having 1904 tax for 1, or before 1905, May Constitution, it was found that
required per- sons on the had list not so entitled themselves to vote, of whom the names of 113 were on the petition. -board, The authorized one entitled to vote thereupon, any at election to come forward and add proposed their names to the or to withdraw petition them; there whereupon were 10 names added were with- petition drawn. found, The board accordance above with the that 1,302 there were of whom figures, voters, registered 418 had “sixteen names less signed petition, being than one-third of the voters who were registered registered election,” at the last and refused to order an municipal election. This for a mandamus proceeding brought election, the board aldermen to order the which against the defendants being granted, appealed. B. & and W. for the Jones
Argo plaintiffs. Shaffer Battle, R. H. W. B. Snow and W. N. for the defend Jones ants. 1903, C. J. Laws “Sec. 7. Chapter provides:
Clark, or town, It shall be the duty governing body any city voters of one-third (1-3) registered petition who were for the therein, preceding municipal registered 8. held,” order an election to be etc. “Sec. election, Any vote for members of the General entitled to Assembly person in all election, to vote at such boxes pro- shall have such voter who is favor of the manufac- vided, * * * “and such voter who is in favor ture,” etc., every a or saloons shall vote ticket on which shall bar rooms etc. be written printed,” who are is, en- presented persons
The question sole a for an election under this statute to sign titled FALL O.]N. TEEM, “one-third voters requires (1-3)
therein, who were registered for the elec preceding municipal tion.” The contend plaintiffs that a voter” is “registered one who is con duly lawfully defendants registered. that a
tend voter” must not be “registered only but registered, e., he must also i. voter, be vote,” “entitled to which right the Constitution denies to one who is merely registered —that is further In necessary he shall have short, the contend one who plaintiffs any, voter, he be actual “voter” though may entitled vote; while the defendants contend that must *3 but also voter. registered,
The are not their unless plaintiffs entitled to mandamus can their they maintain makes proposition registration and who is Who a “voter.” duly lawfully registered, is a ? voter Webster’s International defines Dictionary “Voter: One who is votes, who is entitled to vote.” This in 8 the definition section of this act Laws (chap. 233, 1903,) entitled have says, for, etc., to vote shall “Any person such to vote at election.” The of the Constitution is not language ambiguous. Amendment,
Constitutional now Article VI, 4, section pro- vides: himself “Every person presenting be able read and section should write of the Constitu- in tion he shall be entitled English language; before vote, on or May he shall have before the first paid day vote, in which he his for the year proposes V, as Article section of this year, 1, previous prescribed Constitution.” Then after the authorization of permanent Clause,” for those under the “Grandfather roll registering “Provided, is added: such shall again person a voter tax as above Before one required.” lawfully vote,” must be “entitled to and from the above it plain does one to it is vote, not entitle that being registered as whose added, ordinary, both to those names
68 IN THE SUPREME COURT. Baleiqh.
and tbe “and permanent roll, before are entitled to they vote,” shall have their liable for (if tax under V, Article of1, section the Constitution).
Under the constitutional provisions to the amend- prior ment, male every born the United person, States, of nat- 21 uralized, years old, resident the State months and county days (who not disqualified conviction was an “elector” felony) (or voter,” as de- “qualified him cisions for lack aof better styled when word), regis- tered was entitled vote. As the stood, Constitution then more was and such was a nothing required person “registered voter.” But the Constitutional Amendment made a radical It is now before us for the first change. time decisions as to voters” and “qualified “registered voters,” under the former constitutional as to requirements throw suffrage, new clauses which have light upon meaning taken their the Constitution. places Under the Constitutional of 1899, Amendment now Con- section stitution, VI, Article male every born person, States, United naturalized and possessing qualifications set out in this shall be article, entitled to vote, “except otherwise herein Section provided.” two requires years’ *4 in residence six State, months and four county months conviction precinct (with disqualification by of a Section penitentiary offense). that prescribes per- son to vote shall be a “as voter offering legally registered herein Section 4 then addi- prescribed.” provides above tion to the as to and qualifications residence, age “Every himself shall be able to person presenting for read and write section of the Constitution in the English under the “Grandfather Clause” (unless registered language” “and he ; later set before shall be entitled to vote he out) shall have on or before of that 'his tax paid May year, poll ” for liable V, thereto under Article previous year’ (if and even as to those under section 1), grand- NALL TEEM, N. O.] Baxeigh.
father clause and “permanent record,” who “shall forever thereafter have the in all elections people in this State” (unless disqualified added, there is crime), “Provided, such shall person his paid tax as above This shows that required.” under the former provisions and qualified by residence age (and disqualified by crime) was an “elector” and became, upon registration, “registered but under voter;” the Constitutional Amendment one quali- fied and by age residence (and disqualified by crime) entitled to further, can read and register, provided, he write, or can under the required, register “Grandfather Clause,” but it is added that in neither of carefully those cases shall he become “entitled to vote” unless further he shall have his liable at paid (if the time thereto) prescribed.
The Constitutional Amendment out carefully thought debated both fully the convention and before the peo- There was reasons, doubtless ple. good public policy, one, otherwise prescribing though duly should be entitled to unless lawfully vote registered, he shall have tax. Before that may is done, ” but he cannot be a because “registered voter registered, he cannot vote.
The General could such terms as Assembly prescribe as a an election. It thought proper ordering prerequisite could have with or it need not have dispensed petition, one-third, indeed that should be required petitioners voters,” done so we but authorized “registered having hold to be who the are “en- those voters Constitution says e., i. who, vote,” titled to those besides lawfully being regis- tered, have fur- necessary qualification, upon possessing (if object requiring ther liable). voters” to in the join
one-third “registered turmoil and heated con- expense, was doubtless to avoid kind, *5 incident to an election of this unless at least troversy IN THE SUPBEME COUNT. Pace *.
one-tbird those entitled to vote snob election should their such should held. indicate desire that election was The order the board of aldermen the proper upon In we facts before them. the view we take have case, found it to not necessary express any opinion upon board to there are list, registration though purge authorities which seem to that-course. Duke v. justify Brown, Durham, 99 N. C., 127; C., N. Nor Rigsbee that under the have we been inadvertent to the fact former e., i. was an “elector,” quali constitutional who provision to office, fied to though registered, register eligible is office un under the “Amendment” no one eligible i. e., less he is “voter,” registered upon proper qualifica There tion and having (if liable). which requires in this. The same policy public hardship addition to the tax and registration to constitute “voter” residence, qualification age one who asks the can the same as to require suffrage surely If the board of aldermen be conceded that voters. lists, clearly the had then registration no right purge with its 543 issue, could not for tbe petition mandamus one-third of the names (1,826) upon names did not contain If the can lists. aldermen purge regis who dis off those voters have become lists by tration striking it, can removal, otherwise, they surely purge or vote been be never entitled off those by striking of not having cause of the constitutional disqualification the tax the record that does appear their It evidence nor that such to, resorted was the sole evidence list notice (as probable) parties was not corroborated that his affected alleged nor otherwise, any person if as would have been done fact, had been paid had been dis name as to doubt had been any there record to is no there exception Certainly allowed. of non- nor to the truth finding pursued, method *6 N. FALL TEEM, 1905. 71 C.] Kaieigh.
Pace v. of tax as to nor was any person, any objection on that in ground presented even the argument here; but the plaintiffs and contended earnestly correctly that appeal must be considered the' solely upon set out in exceptions the record—save only that the court did exceptions not have jurisdiction or a cause of action not stated, which ob alone can jections be taken for the first time in this court 27 cases (Rule cited Clark’s Code, pp. 921-924,) these be objections cannot to a If the open plaintiff. plain tiffs had doubts as to any the correctness of of the findings fact non-payment any one, they should by have contested it before the aldermen, and could again tried that de point novo before for while find judge; aby fact Court ings Superior us, judge binding upon of fact the aldermen were review findings by open to be Deaton, fore Court. In re N. 59. But Superior C., far so from the plaintiffs the truth of the contesting findings of fact as to non-payment tax, judgment recites in the Superior Court it “admitted parties, plaintiffs defendants, that the be only question * * * considered in the case is one of law, to-wit: Whether under section 7, Laws 1903, the chapter pay ment tax on or before which May year offers to vote, should be as a test applied competency This was the sole petition.” question was, be ns could presented the appeal.
No one is disfranchised this but it is opinion, simply held that which fact, findings the plaintiffs made no one-third of exception, those entitled to vote at the election-have .This proposed signed petition. would nor course an estoppel preclude further ascer- at tainment of the fact election which any party affected offer to vote. might below judgment
Eeversed. IN THE SUPKEME COUNT. with, differ
Brown, J., dissenting: regret my breth- ren in case and this especially natural my inclinations me to concur. But prompt my con- strongly *7 are board victions the of aldermen strong illegally struck from the the names of a number of petition large had those who the to it. legal am- of right opinion: 1. That the board had no off for to strike them power 2. the tax. That board alleged non-payment if has such fact. 3. That to pass upon they authority in had manner such exercised it authority they illegal and evidence. based their finding upon utterly incompetent in
1. for an The to election certain cases right a law. It is as much citizen given by private a to whom is as the to to those given legal right necessary vote is to those possess qualifications. In to qualifications necessary judgment legally pe my which are neces for an include those tition election become a to and what thereby to enable sary person register a calls voter.” These our plainly “registered Constitution The of the do include language as follows: “See. 7. That it shall be the duty- statute city town, body peti of the governing voters therein, of the (1-3) tion of one-third election, for the preceding municipal who were registered ’ Acts held,” 233, to be etc. Chap. an election order to IV, Article section enacts that Constitution, 1903. a vote shall be at the time offering legally “Every person voter as herein prescribes prescribed." Section become necessary regis but the only qualifications 3. in These are residence referred to section tered voter six and in the months, elec county two years, State for months, the election. Section 'four preceding district tion There is of course other, an educational qualification. adds the for crime. Thus the man known" disqualification well becomes, the language Constitution, who registers N,. FALL TEEM, 0.]
Pace ®. voter.” “registered He exercise may or not as inclination or him. duty may prompt But before he can ex ercise it he is section 4 required by pay for the and previous year such payment must be made on or before 1 of the May year proposes vote. When used the words “registered voter” it used them in the sense in which employed the Constitution and as defined previously the courts. This is an elemen tary of the construction principle of statutes. This court as as 1875 long ago has made a broad distinction between a regis tered voter and a qualified voter, that distinction has been generally both recognized the General Assembly Rodman, Mr. judiciary. Justice for a unani speaking mous “A court, says: qualified voter is one who is entitled as a voter, who is register also to vote after such *8 Caldwell, registration.” Railroad v. 72 N. 493. C., Again he in the says same in opinion: “But idea of the Consti tution the terms voters and -qualified voters are registered not Charlotte, co-extensive.” exactly See also Norment v.
85 N. C., shown that the Having to a become right voter” ais distinctive “registered Consti given by tution, and so recognized by courts, the to have used the term the presumed so significance given it. The to become a voter registered ante-dates the time fixed for the tax, and, payment therefore, follows that a voter, within the registered plain meaning is one who Constitution, has but has not registered, When he does the he a latter, becomes fully voter. If the General had intended that Assembly voters should it would have only qualified words and used those not the term votersP It “registered had the same to one as the other as a power require condi the election. tion With defer precedent holding perfect it seems to me brethren, plain ence have my they by read into the construction statute words which the judicial IN THE SUPREME COURT. 14c General never intended Assembly there. Inasmuch place as the from disability arising tax having paid poll post- dates in all registration cases, it evidently regarded the Constitution and a statute as temporary disability vote and not as a barrier to voter. becoming registered The failure to this tax pay does not authorize the erasure name from delinquent’s of voters. It registry disables him to vote at the election. When succeeding he is made a voter force registers registered of the Con- by stitution. fail He may for ten and then pay poll years exercise his to vote tax for But year with only. conditions ordinarily unchanged ishe but once. The failure to required register pay the tax does not affect in his status as a any way voter. So that when the law one-third of the says regis- tered voters for the it does election, preceding municipal not mean voters who not be free to vote at might election from failure to present first of the but it means all whose names preceding May, are books as voters, standing, permanent all who is, are voters. potential
I have not reviewed the authorities cited defendant’s brief because are not noticed the court opinion have, under my judgment, application point for the reason that we now discussion, the law considering for an qualifications election, prescribes petitioners *9 and not of voters at an election. qualifications
2. We were invited counsel both sides to scrutinize by care. I have done and in so, this record with the investiga reason, of the case another not mentioned in tion argument y has to me which brief, or occurred greatl my strengthens General that the used the words Assembly conviction “regis and in voters” the sense advisedly tered they always That because the fails is, been used. statute to the give who determine has not any power authorities paid poll city N. FALL TERM, 1905. 75 O.] tax and fails to declare bow the fact shall be and what proven evidence is It necessary. for provides this machinery pur Whether a man is a pose. voter can be de easily termined aby simple inspection books. Whether not has tax cannot be paid determined of the tax books. If inspection that were allowed, sheriff or tax collector could disfranchise temporarily to enter the The failing payment. of was not willing voter place power the tax and so collector, under the election law en general acted at that term the tax lists constitute no evidence what ever. are They utterly incompetent prove anything.
entries of ex The voter has no control payment parte. over them are not him evidence against upon fact of There is no law that can find that payment. requires the sheriff to make the of taxes entry lists. is his Such own for his own entry act, convenience, and is record. Noble v. Kansas, public Douglas,
The Act of that it shall be the provides every duty sheriff and collector, between the 1st and 10th days thereafter, under oath May, biennially certify a true and correct list of all who have their persons tax for the on or before the first previous year May, day clerk of the within Court, shall, ten Superior days, in a book record the same to be provided purpose, a true each township separate, certify copy keeping for such the chairman of the board of elections thereof to This for information for chal- purposes county. evidently If were to refer to the tax books to deter- permissible lenge. has this list would be the tax, mine who certified best paid poll and not the sheriff’s entries on the books. fact, evidence of that elections, for the board of This list is the evidence provided voter. The record made evidence but it against aldermen, board of the committee of the this case shows that who had determining appointed purpose *10 IN THE SUPREME COURT. tax, referred to the sheriffs books tax the accepted entries as there conclusive evidence.
If the the construction of statute adopted by majority of the is court one, true it was the intention of the that the Legislature words voter,” “registered un plain as should equivocal they are, mean “qualified voter,” is it strange bodies cities and towns governing are the naked given power, implied under the necessarily court’s to determine construction, who are voters, and left without a vestige such determination? Is machinery it that the true of a are qualifications de-, voter to be left for termination the uncertain of a board of judgment aider- men to be allowed or denied the absence of the voter and to be ? without the heard The statute does suggest means of and who are determining not qualified voters. It silent as to the tax books. then, is the Where, to consult the sheriff’s authority office where is guidance; or sheriff’s entries lack of entries accept or conclusive of the tax? It non-payment poll cannot be found the statute. And yet, the result logical the court to construe into the act this opinion such a ? Is construction reasonable authority. answer this law, to the election enacted by again referring general and considered and Legislature approved by Leg to show islature of of the unwillingness part to leave the such suffrage control and to show the unusual care for the providing machinery of the of a voter. determination qualifications Following that no shall be entitled to vote unless person requirement his tax accordance with the shall Constitu liable for tion, “Every person the act such tax provides: vote, allowed exhibit before shall, being registrar for the receipt previous issued under year, or tax collector sheriff of the county hand township Provided, resided: lieu where he then of such *11 n N. NALL TEEM, O.] Raleigh.
Pace v. it shall be for receipt the and competent of registrar judges election to allow such to vote his person and sub taking the oath:'North scribing following Carolina, ...... County.
I do swear solemnly (or that or before the affirm) first of of this day May, year, paid tax for the my poll pre vious year, required VI, Article section of by the Con ” stitution of North Carolina.’
In this the enacting provision recognized the exercise the should be favored and right suffrage and that the method of discouraged, the existence determining of the should be It is true that right simple. the determina tion of the board of aldermen as to the the
by does signers petition not involve the right vote, but to call an election. But it matters right not that the to vote is not involved. The right directly right is a conferred the act and petition this court legal right a says to cast vote. Under the court’s depends upon right
construction of the statute a resident the city Raleigh, or of other a voter, city, although registered qualified a election, be denied voice an because the board may calling of aldermen an he is ex when proceeding, present, parte the,tax with no sheriff, evidence before it save list of the may find he is not a voter.
A state of facts will injustice show supposed court’s A has elec- construction. signed he his sheriff’s tax does not show that has tion; paid list and incom- the board of aldermen on such tax; negative name on the day evidence erase his from the petition; petent his tax or makes oath that of election he presents receipt, at election which he tax, has votes refused In case the voter is denied the to call. this in which he for a election municipal of petitioning has the to vote. of this machinery a further evidence of the importance
As a it is voter, provided determining qualifications IN THE SUPREME COUNT. election law general that the failure of the sheriff to give is a receipt misdemeanor, be is required upon appli cation and affidavit of the that bis applicant has been receipt lost to provide duplicate receipt. act, however, pro vides no for a penalty mistake the list of who have persons their tax, and does not even require entry made on the tax books, other than the list to be furnished the *12 clerk of court, the which was not to the board of by referred aldermen in this case. That the tax books are to mis subject takes be cannot doubted. Is the voter then be to given op to correct such portunity or mistake, make oath to the pay ment of bis tax and poll entitled be to the thereby sign peti tion? It seems to me to be a strained construction of the intention legislative to bold that the face of the specific of the machinery election law general for the determining of a qualification voter, should they empower governing of bodies towns and cities to method should adopt any they see fit to to determine so adopt matter. Is the important voter, whose to attacked, is right petition given the terms of statute, either express implied, be to when the ? present matter is considered Is be entitled to any Is be entitled to notice? Can be bearing? present bis tax or make oath that be has bis tax? receipt poll Can ? be show that be is statute from exempt poll no such Then must assume that these gives rights. rights are denied and this the facts him, supported by assumption in this case. The board of of the committee of the report aldermen of the the method city Raleigh, explaining of the pursued determining qualification signers “We examined the tax book of the sheriff petition, says': hun of Wake for the and found two County year dred and whose names are on the sixty-six (266) persons for the books failed to their taxes year pay find 1904 on or before of these names we 1, 1905; Hay whose names are 113 on the petition persons regis- X, NALL TEEM, O.] Kaleigh. books
tration who failed their to pay taxes year 1904 on or before 1905.” May 1,
Is ? their conclusion justified examined the They say they tax books made such only. examination the absence They voter, on this yet sort evidence incompetent conclude that the has not 'been deny voters the to an election. .Has so far lost its its suffrage exercise sanctity can made dependent conclusions drawn from such evidence? Books, possibly incorrect, committee, possibly mistaken, from this the conclusion is drawn that 113 all of whom are petitioners, absent, have failed to their pay And this unwarranted method is endorsed this court because Mr. be, Webster defines a voter “One who votes, is entitled vote.” It me that this appears a forced construction and that it could have been the intention a board of aldermen empower determine ex parte proceeding qualifications *13 voter, himself as a when the election law offering general solicitous in so the voter’s protecting to prove qualification. the a
That construction of statute should reasonable is be it should in familiar That be construed the learning. light well of same settled. the also existing legislation subject is a before us? What reasonable construction the statute a and provide intended to convenient simple, A method of and an election. peti- cheap calling petitioning a number citizens was specified objec- tion open in children, women and who are the broad- tion that citizens a number of word, it; of the sign est sense might specific I have because, voters was inconvenient pointed qualified and method of would involve a cumbersome tedious it out, met who are voters. The Legislature determining alternative, the regis- objections by adopting these voter, be and that an election must called provided tered IN THE SUPREME COURT.
“upon the
of one-third
(1-3)
voters
town.”
city
did not
They
use the word “voters”
alone, because it is co-extensive with qualified voters, and be
cause means,
as the court defines it, “One who votes, one
who is entitled
vote,”
and there would
de
difficulty
this
termining
but
question;
it with the
they qualified
word
“registered,” thereby
intending
books
the names of the
containing
existing registered voters should
be final in
the number of
determining
citizens
having
a
petition.
the board has
Assuming
implied power
determine who have not
I am
tax,
convinced
that,
without
on their
any wrongful purpose
have mis
part, they
exercised such
in an
takenly
manner. Al
power
illegal
this
was not
though
point
us,
before
it arises
argued
upon
for mandamus.
complaint
the voluminous exhib
Omitting
its attached to the
it is
and
complaint,
short
simple,
that the board
refused
alleges
to count
names
wrongfully
on the
It is
rightfully
petition.
the court to con
duty
sider
view of the law wherein
board
have erred
may
Asso.,
to count those names.
In
refusing
Scott v. Life
complaint would and this tax, plaintiff their poll of them have not paid Each for them. admission to make such have right notice, present has the right personal petitioner the petition his individual and be heard when as when much so is contested such ground, day upon on at the election polls to vote challenged in defense and is heard Then same present ground. been has and reasonable right Such just
his legal rights. 113 peti- case to each defendant in this denied from the stricken tioners whose names were arbitrarily “If be conceded court, says: its petition. opinion, had no the regis- of aldermen purge that the board issue, could tration then mandamus lists, clearly of the names upon did not contain one-third the petition if be true This of course could only list.” registration tax are added to who had not names of those had and those names lists, If we restored to the petition. tax were not paid poll restore them to names to we must one, restore the and is ex- here, conceded below, was admitted other. It all, Justice acquiesced found by Judge pressly then was not disqualification, if non-payment voters had the petition. one-third of the signed the necessary thus: The count stands .1,826 ...
Original registration..
Dead and removed. voters.1,568
Registered one-third.-.
Necessary 6—
82 IN THE SUPREME COURT.
On petition. Names taken off request Ox ^ tü LO [03]
521 Names added 13 by request. Excess on over one-third of petition voters... registered
The above is the true estimate of those who are reported not to have tax and who are paid poll and on the registered If are petition. excluded, then the lacks 16 of one-third of having voters.
In view of the of the report committee to the examina- I tion the tax am at a lists, loss understand the statement in the that it does not opinion that the tax list was the appear sole evidence before them. That is the statement plain unius est alierius. report exclusio expressio committee— No one board disputes purge regis- tration books of dead and removed, but tax not the board being necessary qualification register, has no books of purge registration voters not to have alleged Registrars holders themselves cannot do that. How can be it said a voter’s can name stricken logically practically from the books the lack of a qualification ? there required put
In behalf of these whose private citizens, legal rights have denied and who them, been been practically notice, declared disfranchised without hearing competent evidence, enter dissent to the my respectful opinion of the court this case. majority judgment I am authorized to that Mr. Justice Walker concurs say dissent. this