Pace v. Raleigh.

BROWN AND WALKER, JJ., dissenting. This was an application for a mandamus. The plaintiffs and others presented a petition to the board of aldermen of the city of Raleigh asking that an election be called to determine whether saloons should be licensed in said city for the sale of intoxicating liquor in lieu of the existing City Dispensary. The committee to whom the petition was referred reported that *Page 50 they found on the registration books 1,826 names, but that 233 of those registered had moved and 35 had died, leaving 1,568 valid registered names; that after purging in the same manner from the petition the names of those who had removed or died there remained on the petition 543 names. Upon further reference to ascertain how many of those upon the registration books and the petition respectively were entitled to vote (66) by having paid the poll tax for 1904 on or before 1 May, 1905, as required by the Constitution, it was found that 266 persons on the registration list had not so entitled themselves to vote, of whom the names of 113 were on the petition. The board thereupon authorized any one entitled to vote at the proposed election to come forward and add their names to the petition or to withdraw them; whereupon there were 10 names added to the petition and 22 were withdrawn. The board found, in accordance with the above figures, that there were 1,302 registered voters, of whom 418 had signed the petition, being "sixteen names less than one-third of the registered voters who were registered at the last municipal election," and refused to order an election. This proceeding was brought for a mandamus against the board of aldermen to order the election, which being granted, the defendants appealed. Chapter 233, Laws 1903, provides: "Sec. 7. It shall be the duty of the governing body of any city or town, upon the petition of one-third (1-3) of the registered voters therein, who were registered for the preceding municipal election, to order an election to be held," etc. "Sec. 8. Any person entitled to vote for members of the General Assembly shall have the right to vote at such election, in all boxes provided, and any such voter who is in favor of the manufacture," etc., * * * "and every such voter who is in favor of bar rooms or saloons shall vote a ticket on which shall be written or printed," etc. The sole question presented is, who are the persons entitled to sign a petition for an election under this statute which requires "one-third (1-3) of the registered voters therein, (67) who were registered for the preceding municipal election. " The plaintiffs contend that a "registered voter" is any one who is duly and lawfully registered. The defendants contend that a "registered voter" must not only be registered, but he must also be a voter, i. e., "entitled to vote," which *Page 51 right the Constitution denies to one who is merely registered — that it is further necessary that he shall have paid his poll tax. In short, the plaintiffs contend that any one who is registered is a voter, though he may not be an actual "voter" entitled to vote; while the defendants contend that he must not only be registered, but also a voter. The plaintiffs are not entitled to their mandamus unless they can maintain their proposition that registration makes any one who is duly and lawfully registered, a "voter." Who is a voter? Webster's International Dictionary defines "Voter: One who votes, who is entitled to vote." This is the definition in Section 8 of this act (Chap. 233, Laws 1903) which says, "Any person entitled to vote for, etc., shall have the right to vote at such election." The language of the Constitution is not ambiguous. The Constitutional Amendment, now Article VI, Section 4, provides: "Every person presenting himself for registration should be able to read and write any section of the Constitution in the English language; and before he shall be entitledto vote, he shall have paid on or before the first day of May of the year in which he proposes to vote, his poll tax for the previous year, as prescribed by Article V, Section 1, of this Constitution." Then after the authorization of a permanent roll for those registering under the "Grandfather Clause," it is again added: "Provided, such person shall have paid his poll tax as above required." Before one is lawfully a voter he must be "entitled to vote," and from the above it is plain that being registered does not entitle one to vote, for it is added, both as to those whose names are upon the ordinary, and the permanent roll, "and before they are entitled to vote," they shall have paid their poll tax (if liable for poll tax under Article V, Section (68) 1, of the Constitution). Under the constitutional provisions prior to the amendment, every male person, born in the United States, or naturalized, 21 years old, resident in the State 12 months and in the county 90 days (who was not disqualified by conviction of felony) was an "elector" (or "qualified voter," as the decisions styled him for lack of a better word), and when registered was entitled to vote. As the Constitution then stood, nothing more was required and such person was a "registered voter." But the Constitutional Amendment made a radical change. It is now before us for the first time and decisions as to "qualified voters" and "registered voters," under the former constitutional requirements as to suffrage, throw no light upon the meaning of the new clauses which have taken their places in the Constitution. *Page 52 Under the Constitutional Amendment of 1899, now Constitution, Article VI, Section 1, every male person, born in the United States, or naturalized and possessing qualifications set out in this article, shall be entitled to vote, "except as herein otherwise provided." Section 2 requires two years' residence in the State, six months in the county and four months in the precinct (with disqualification by conviction of a penitentiary offense). Section 3 prescribes that a person offering to vote shall be a legally registered voter "as herein prescribed." Section 4 then provides that in addition to the above qualifications as to age and residence, "Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language" (unless registered under the "Grandfather Clause" later set out); "and before he shall be entitled to vote he shall have paid on or before 1 May of that year, `his poll tax for the previous year'" (if liable thereto under Article V, Section 1), and even as to those registered under the grandfather clause and upon the "permanent record," who "shall forever thereafter have the right in all elections (69) by the people in this State" (unless disqualified for crime), there is added, "Provided, such person shall have paid his poll tax as above required." This shows that under the former provisions one qualified by age and residence (and not disqualified by crime) was an "elector" and became, upon registration, a "registered voter;" but under the Constitutional Amendment one qualified by age and residence (and not disqualified by crime) is entitled to register, provided, further, he can read and write, as required, or can register under the "Grandfather Clause," but it is carefully added that in neither of those cases shall he become "entitled to vote" unless further he shall have paid his poll tax (if liable thereto) at the time prescribed. The Constitutional Amendment was carefully thought out and fully debated both in the convention and before the people. There was doubtless good reasons, of public policy, for prescribing that no one, though otherwise qualified and duly and lawfully registered, should be entitled to vote unless he shall have paid his poll tax. Before that is done, he may be registered, but he can not be a "registered voter," because he can not vote. The General Assembly could prescribe such terms as it thought proper as a prerequisite to ordering an election. It could have dispensed with any petition, or it need not have required one-third, or indeed that the petitioners should be "registered voters," but having done so we are only authorized to *Page 53 hold those to be voters who the Constitution says are "entitled to vote,"i. e., those who, besides being lawfully registered, upon possessing the necessary qualification, have further paid the poll tax (if liable). The object in requiring one-third of the "registered voters" to join in the petition was doubtless to avoid the expense, turmoil and heated controversy incident to an election of this kind, unless at least one-third of those entitled to vote in such an election should indicate their desire that such election should be held. (70) The order of the board of aldermen was proper upon the facts before them. In the view we take of the case, we have not found it necessary to express any opinion upon the right of the board to purge the registration list, though there are authorities which seem to justify that course. Dukev. Brown, 96 N.C. 127; Rigsbee v. Durham, 99 N.C. 348. Nor have we been inadvertent to the fact that under the former constitutional provision one who was an "elector," i. e., qualified to register, was eligible to office, though not registered, and that under the "Amendment" no one is eligible to office unless he is a "voter," i. e., registered upon proper qualification and having paid his poll tax (if liable). There is no hardship in this. The same public policy which requires the payment of poll tax and registration in addition to the qualification as to age and residence, to constitute a "voter" can surely require the same as to one who asks the suffrage of voters. If it be conceded that the board of aldermen had no right to purge the registration lists, then clearly the mandamus could not issue, for the petition with its 543 names did not contain one-third of the names (1,826) upon the registration lists. If the aldermen can purge the registration lists by striking off those voters who have become disqualified by removal, or otherwise, they can surely purge it, by striking of those who have never been entitled to vote because of the constitutional disqualification of not having paid their poll tax. It does not appear in the record that the tax list was the sole evidence resorted to, nor that such evidence was not corroborated by notice to the parties (as is probable) or otherwise, nor that any person affected alleged that his poll tax had been paid in fact, as would have been done if there had been any doubt as to any name which had been disallowed. Certainly there is no exception in the record to the method pursued, nor to the truth of the finding of nonpayment of poll tax as to any person, nor was any objection on that ground presented even in the argument (70) [(71)] here; but the plaintiffs earnestly and correctly contended that an appeal must be considered solely upon the exceptions *Page 54 set out in the record — save only exceptions that the court did not have jurisdiction or a cause of action is not stated, which objections alone can be taken for the first time in this Court (Rule 27 and cases cited in Clark's Code, pp. 921-924) and these objections can not be open to a plaintiff. If the plaintiffs had any doubts as to the correctness of the findings of fact as to the non-payment of poll tax by any one, they should have contested it before the aldermen, and could again have tried that point de novo before the judge; for while the findings of fact by a Superior Court judge are binding upon us, the findings of fact by the aldermen were open to review before the Superior Court. In re Deaton,105 N.C. 59. But so far from the plaintiffs contesting the truth of the findings of fact as to the non-payment of poll tax, the judgment recites that in the Superior Court it was "admitted by the parties, plaintiffs and defendants, that the only question to be considered in the case * * * is one of law, to-wit: Whether under Section 7, Chapter 233, Laws, 1903, the payment of poll tax on or before 1 May of the year in which he offers to vote, should be applied as a test of competency to sign the petition." This was the sole question that was, or could be presented to us on the appeal. No one is disfranchised by this opinion, but it is simply held that upon the findings of fact, to which the plaintiffs made no exception, one-third of those entitled to vote at the proposed election have not signed the petition. This would not of course be an estoppel nor preclude a further ascertainment of the fact in any election at which any party affected might offer to vote. The judgment below is Reversed.