State v. Crenshaw

138 Ala. 506 | Ala. | 1903

HARALSON, J.

The appellee, Peter Crenshaw, on the 10th of December, 1902, filed his petition in the circuit court of Limestone; county, addressed to the judge of that court, in which he alleged, that under the revised constitution of the state, of 1901, he was a qualified elector, entitled to vote; that under the provisions of said constitution, he was entitled to register as an elector, and such registration would thereby entitle him to vote during his life; that he resided in precinct No. 1 of said county and state, and under the provisions of the constitution, the Board of Registrars, duly appointed for said county, composed of three persons, Avliose names were given, held sessions at the court house of the county for the purpose of registering all applicants Avho ivere qualified; that during the 3d week, and on the 20th day of November, 1902, Avhen said board Avas in session, as provided by the constitution, the petitioner made proper legal application to said board, to register ás an elector, that said board declined and refused to register the petitioner Avhich Avas contrary to the prolusions of said constitution.

He prayed that a trial be given him in said court; that the question of his right to register as a qualified elector of the state be adjudicated, and for such other and further relief as might be proper.

Motion is here submitted to dismiss this appeal, on the ground, that there is no provision of law for an appeal by the state in such proceedings as this; that this court has no jurisdiction of the appeal, and that under section 186, subdivision 6 of the revised constitution, under which this proceeding was had in the • lower court, the right of appeal to the state is prohibited by granting an appeal in express words to the petitioner, and by expressly declaring that final judgment in favor of petitioner shall entitle him to registration as of date of his application.

Subdivision 6 of section 186 of the constitution, provides' that, “Any person to whom registration is denied, shall have the right to appeal, without giving security for costs, within thirty days after such denial, by filing a petition in the circuit court or court of like jurisdiction held for the county, in which he seeks to register to have his qualifications as an elector determined. guch trial the court shall charge the jury only as to what constituted the qualifications that entitled the applicant to become an elector at the time he applied for registration, and the jury shall determine the right and effect of the evidence and return a verdict. From the judgment rendered an appeal will lie to the Supreme Court in -favor of the petitioner, [italics ours] to be taken -within thirty days. Final judgment in favor of petitioner shall entitle him to registration as of the date of his application to the registrars.” The framers of the constitution might well have rested the interest the state had in the matter with the determination of the jury, without an appeal from their finding, and this is indicated in the provision, that, “the jury shall determine the weight and effect of the evidence and return a verdict,” and in prohibiting the judge trying the case from charging them, “only as to what constituted the qualifications that entitled the applicant to become an elector at the time he applied for registration.” The right of appeal,- — not provided for the State, — was properly bestowed on him, and because bestowed on him the same right was not thereby, by implication, bestowed on the state. It is true the framers of the instrument did not declare that in such cases the appellate power of the court shall not extend to the state, but, as was said by Chief Justice Marshall in Dubrosseau v. United States, 6 Cranch, 308, s. c. 3. L. ed. 305, “they have described affirmatively its jurisdiction, and this affirmative jurisdiction has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.” It is added, as to the construction of statutes: “It was a maxim of the old law that causus omissus pro ommiso habendus est, that is, a cause omitted is to be held as intentionally omitted, * * * and so, not to have been omitted merely by inadvertence or accident; still the courts are not at liberty to add to the language of the law; and it must be held that the legislature intended to omit the specific case, however improbable that may appear in connection with the general passage of the statute.” — Black on Interpretation of Laws, 57; State v. Hewlett, 124 Ala. 471. If there were errors committed on the trial against the State, as to these, the State is remediless. The judgment in favor of the appellant, as the constitution provides, entitles him to registration.

The appeal by the State cannot be maintained under section J2 of the Code, providing that the State may sue in its own name and is entitled to all remedies provided for the enforcement of rights between individuals, etc., since this section applies only where the State is the plaintiff or actor in the proceeding.

From what has appeared, it is obvious that the appeal by the State, is not within the provisions of the Constitution on the subject, and must be dismissed.

Appeal dismissed.