United States ex rel. Green v. McCommick ( 1855 )

Judge Dunlop,

in pronouncing the opinion of the Court, says:

The first question to be decided is as to the right of a citizen, naturalized since the 31st day of December last, to vote, having all the other qualifications required by the city charter.

It is insisted on one side that the charter requires a residence of a year after the person claiming to vote shall have received his naturalization papers? That depends on -the strict and fair construction of the 5 th section of the charter of 1848, which says, “every free white male citizen of the United States, &c.”

It is supposed to be the true construction of the charter, not only that he must be naturalized before the election, but shall have resided as a naturalized citizen in the city a year before the day of election. But this is not a true construction of the charter.

It would require us to interpolate after the words, “resided in the city of Washington,” the words “as a citizen of the United States,” which we have no authority to do.

The party offering to vote must by the charter be a free person, white, a male, and a citizen of the United States, and must have attained the age of 21 years and resided here one year next preceding the day of election. There is no necessity for this restriction, it would, in effect, be asking the Court to add another year of probation. The law of the land requires a residence of five years. By affirming the construction sought, it would require a residence of six years in order to enjoy the full privileges of a citizen. Whether this is expedient or not it is for the legislature to determine. It seems to me, therefore, that the term “resident” does not relate to his political character as a citizen of the United States, but his residence as a person. The true construction of the charter is, that if a person be subject to the school-tax, and is a resident, he has a right to vote; in the case of the petitioner Green, it is for him to say whether he is a legal voter. It appears that he has resided in the City of Washington one year previous to the filing of his petition in the present case, and was, as he states, entitled to be enrolled on the school-tax register; but that his name was not enrolled.

The question is: first, whether the petitioner is entitled to enrollment. Although conceded by Mr. Bradley that the alien, who was a resident, was subject to be enrolled; yet his colleague (Mr. Scott) argued earnestly, and with much ingenuity, that that concession ought not to have been made. That depends on the 2d section of the Charter, which says, “the Corporation shall have power to lay and collect a school-tax on every free, white male citizen of the age of 21 years and upwards. It will be observed in the first place, that the terms in the 2d and 5th sections are different.

In the 5th, to qualify a man to vote he must be a free, white, male citizen of the United States; but in the 2d section (which gives the Corporation power to lay and collect the school-tax) he must be a free, white male citizen, omitting “of the United States.” It is supposed that the legislature intended the language to be different, if it did, it should have said so. A foreigner may be a citizen, an inhabitant, or a resident of a town, while so, he has a duty to perform; he is bound to obey the laws, and is entitled to protection; he may, without being a citizen of the United States, be a citizen of Washington, a dweller, and an inhabitant, all these meaning the same thing, Dryden so defines them. If a foreigner has a right to come to this city, and has resided here, is there any reason why he should not be subject to the burdens of the city, and contribute to its support? It is admitted that as to real and personal property he is subject to taxation. Here foreigners are to some extent quasi citizens, without being citizens of the United States.

In relation to the school-tax: every child between 5 and 16 years of age has a right of admission into the public schools, whether the child of an alien or naturalized citizen. He enjoys the benefit of the school system, and for this reason he contributes a school-tax. We are warranted in this opinion, not only by the laws of the Corporation but by the charter. I think it clear, therefore, that the foreigner who resides in the City of Washington is subject to the school-tax, and as the petitioner says he was subject to the school-tax on the 31st of December last. It was the duty of the assessors to register his name. This they have failed to do.

When the case of C. S. Wallach was last year before the Court it was held, that where the party was entitled to be registered, but the assessor had omitted his name by neglect, or inadvertance or carelessness, the person thus entitled should not be deprived of his right to vote, on producing the proper proof to the commissioners of election.

But the question to coerce the city register by mandamus to enter the name of the petitioner on the school-tax list involves matters of considerable importance. The law however is familiar to the Court. The Supreme Court at the last term decided it in two cases. The doubt here is as to what officer, if any, can be operated upon and controlled.

The mandamus applied for is to compel the register of this city to enter the name of the applicant on the list. In the case of Wallach there was no mandamus issued. The opinion of the Court was sought at the instance of all parties, thejudges of election included. We think now as we thought then, that the register, having passed out of the hands of the assessors by whom it was made, is now in the hands of the commissioners of election-

Those were the only parties who could be controlled; but this Court could not operate upon them by a mandamus, the list now being in possession of the commissioners of election. These latter are quasi judges, and are sworn to decide the qualification of voters, according to their judgment and the law. Their duties are not ministerial, therefore the Court cannot control them by a mandamus, and the Supreme Court of the United States has laid down the principle.

Judge Morsell did not deem it necessary to occupy much time, but if desired or wished for on this occasion he should certainly concur in the views of his brother judge.

He felt satisfied that the construction of the statute as he (Judge Dunlop) had thought proper to give it, and on those views he relied. The Court has no jurisdiction to award a mandamus.

A mandamus under the circumstances may issue,, if it' can be issued to an officer whose duties are ministerial and not judicial.

In the present case the list has passed out of the hands of the register, (who is a ministerial officer) and therefore the mandamus is dismissed.