Davis v. School-District , 44 N.H. 398 ( 1860 )

Bartlett, J.

The act of July 3, 1860, provides that no person shall be considered as dwelling or having his home in any town, &c., for the purpose of voting, &c., at any meeting therein, unless he shall have resided within such town, &c., six months next preceding the day of said meeting. Laws of 1860, ch. 2341. By chapter 850 of the laws of 1849, it is provided that any person who shall exercise the privilege of voting at any election in any town or place, within this or any other State, shall be deemed by that act to have elected such town or place to be his legal residence for the purpose of voting, and shall thereafter be disqualified to vote in any other town or place in this State, until he shall have gained a new residence, &c. The plaintiff' contends that these acts are in conflict with articles 28 and 30 of the constitution of this State, which provide that “ every male inhabitant of each town, &c., of twenty-one years of age and upward, excepting paupers and persons excused from paying taxes at their own request,” shall have the right to vote, &c., in the town, &c., where he dwells and has his home.

Where the constitution has established a political right or privilege, but has not particularly designated the manner of its exercise, it is within the constitutional limits of the legislative power to adopt all necessary regulations in regard to the time and mode of exercising it, which are reasonable and uniform, and designed to secure and facilitate the exercise of such right in a prompt, orderly and convenient manner. Such a construction would afford no war.rant for such an exercise of legislative power as under the pretense of regulating should subvert or injuriously restrain the right itself; but a statute merely providing a mode of exercising the right, easy and reasonable, and calculated to prevent error and fraud, and secure order, regularity and uniformity in the conduct of elections, and thereby give more security to the right itself, is not open to this objection. Capen v. Foster, 12 Pick. 490.

It is hardly practicable in establishing the fundamental law of the State to fix precise regulations for its application, so minutely and accurately that they shall suffice for every case that may arise, and therefore the framers of our constitution only settled the general principles that should govern the right of suffrage, without attempting to enact in detail rules to regulate or secure its exercise; and that instrument has fixed the qualifications of voters, but has not provided what shall be the evidence of such qualifications, or how or when it shall be furnished. The great object of these provisions of the constitution is to extend to every citizen of proper age, with the exceptions specified, the right of suffrage, so that each may have his equal voice and proportionate weight at the polls. Therefore it is held that these provisions, though in terms broad enough to include all male inhabitants, &c., are not intended to include aliens not naturalized, and statutes prohibiting or excluding such from voting are not in conflict with them. Opinion of Justices, 8 N. H. 574; Act of 1813; Laws of 1815, sec. 250; Act of 1814; Act of 1814, 254; Act of 1827, secs. 1, 15; Laws of 1830, 446, 450 ; Rev. Stat., ch. 25, sec. 20; Rev. Stat., ch. 24, sec. 1. The spirit of these provisions is as much violated by the reception of votes from those not entitled to cast them, as by the exclusion of the votes of those who have the right of suffrage; for in either case each citizen properly qualified is not allowed his equal and proportionate weight in the conduct of public affairs. In construing the constitution, where a strict adherence to its letter would manifestly conflict with, its spirit and intent, and would defeat its object, the object and purpose of the instrument are to be regarded more than the letter. 8 N. H. 574. If it were to be held that these clauses of the constitution were designed to contain all the regulations of the right of suffrage, a literal construction of them might in some cases allow citizens to vote more than once in the same election; but this would be as manifest a violation of the intent of the provisions of the constitution as the extension of the right of suffrage to aliens. Some legislation therefore is necessary to secure the object of these constitutional provisions; and we think that it has been left to the legislature and is within their constitutional power to provide such reasonable rules as shall be necessary to protect and secure the right of suffrage established by the constitution, and regulate the manner of its exercise.

Unless some uniform rules as to the evidence of residence are established by the legislature, numerous questions, not always free from doubt and difficulty, are left to be determined, as they may arise, by the many and shifting boards of town officials; and in such case the full, fair and effectual exercise of the constitutional right of suffrage might often be endangered from the want of certainty and uniformity in the rules of evidence and decision, and from the liability to error and exposure to fraud that would attend such a system of practice, if entirely unregulated by statute. Experience has shown the practical necessity of some such regulations as those in question, in consequence of the increase of population and of facilities for communication and migration in the State, and statutes similar to the act of 1860 have been in force, and have been generally acquiesced in, for the last thirty years. Laws of 1831, 34 ; Laws of 1838, 353; Rev. Stat. 82, sec. 4. Under the acts in question no citizen entitled to vote will ordinarily be deprived of the exercise of his right, except by his own voluntary act; and the acts themselves are mere regulations as to the evidence that the citizen dwells and has his home in a particular town, and their object is not to subvert or injuriously limit or restrain the right of suffrage, but to secure it in its full extent to those entitled to it, by preventing fraudulent voting; and we think that their provisions are fairly appropriate to effect this object. McCulloch v. Maryland, 4 Wheat. 413; 3 Story Const. 122; 1 Kent 250.

But it is said that the validity of these statutes is to be tried by the question whether, upon the facts stated, Dunklee would not have had a right to vote in the district but fqr these statutes. Now, whatever may be the answer to this question in the present case, it seems to us au incorrect test, since the application of it would exclude all power to prescribe check-lists, vote by ballot, and the like. "Whether cases may arise to which these statutes could not be properly applied we need not inquire, for as they are not in conflict with our constitution when applied to the present case, which is but one of a large class of cases to which they are properly applicable (Opinion of Justices, 41 N. H. 555); Daniel C. Dunklee was not entitled, under section 6 of chapter 70 of the Revised Statutes, to vote in the meeting of August 24, 1861. »

At the meeting of December 29, 1859, the school district ratified the action of the committee in locating the school-house and commencing its erection, and the votes show that they were passed with knowledge that a perfect title to the lot had not been secured to the district. The warrant for that meeting is not before us, but the auditor finds that the meeting was duly notified and held, and no question as to the sufficiency of the warrant for the vote is suggested ; but the district, notwithstanding its vote at that time, and its subsequent ratification of the action of the committee, after the completion of the school-house, now objects that it has not acquired the title to the land on which the house has been built. The question presented here is not whether, as against the owner of the land, the district could enter upon it without having acquired title or obtained his consent; indeed it does not appear that the owner did not acquiesce in the erection ; nor is the question here what may be the rights of the district against him, but simply whether, under the circumstances disclosed, the fact that the district has not a title in fee, or for an indefinite time, good as against every body, is a defense to this suit. We do not think that the broad position of the defendants, that a district can not become bound for the payment of money furnished to erect a school-house on land to which the district has not at the time acquired a title in fee, or for an indefinite time, good as against every body, is maintainable. We find no such limitation expressly imposed upon school districts by our statutes, and it does not seem to us required by the nature and object of their powers, or adapted to the exigencies that might arise. Here the district had and still has the power to obtain the title to the land, even against the owner’s consent; Rev. Stat., ch. 71, sec. 7; Laws of 1849, ch. 858; and it has not been interrupted by any one in the use and occupancy of the land. We are therefore of opinion that this fact relied on by the defendants does not furnish a defense in the present case.

The defendants’ objection because of the non-joinder of I. H. Davis seems properly abandoned, for upon the finding of the auditor it appears that the materials were furnished and the money paid for the district by the plaintiff, and not by the firm. This action is well brought by the plaintiff, without joining the other committee-fmen, for his claim is several. Harris v. School District, 28 N. H. 58.

If the committee were limited by the vote of December 29, 1859, to the $350, they can not recover for any amount expended beyond that sum, unless the district has ratified their action. Harris v. School District; Wilson v. School District, 32 N. H. 123; Keyser v. School District, 35 N. H. 482. Perhaps the vote of the district on the 8th of March, 1862, to raise money to pay for the stove in the school-house, when taken in connection with the facts of the report made at the meeting of June 1, 1860, and of the use of the house for the schools and meetings of the district since that report; might be evidence of a ratification of the action of the committee by the district; Wilson v. School District; Keyser v. School District; but however this may be, the vote of the district as to the school-house, which was duly passed on the 24th of August, 1861, after that report had been made, and the subsequent occupation of the house for the schools of the district, are quite sufficient to support the finding of such a ratification by the auditor. “ A ratification of an act, done by one assuming to be .an agent, relates back, and is equivalent to a prior authority.” Dispatch Line v. Bellamy, 12 N. H. 232; Broom Legal Max. 676; Story on Agency, secs. 239, 242, 244; 2 Kent 616; Fleckner v. Bank, 8 Wheat. 363. And a ratification once made can not ordinarily be revoked. Story Agency, secs 242, 250. It follows that, as between the parties in such case, their rights and interests are to be treated as arising at the time of the original act, and not merely from the date of the ratification; and it can be no more an objection to such a ratification that it affects subsequent transactions between the parties, than to a confession of judgment; for a party has the right to take upon himself such consequences, if he chooses. It is therefore in general no objection that the ratification is subsequent to the commencement of the action, if the suit is founded upon the original act or contract and not on the act of ratification. Russell v. Abbott, 13 N. H. 477; and see Merrifield v. Parrit, 11 Cush. 598. The decisions in Merriam v. Wilkins, 6 N. H. 432, and Hall v. Gerrish, 8 N. H. 374, were in cases of the contracts of infants, and are treated as exceptions to the general rule. Russell v. Abbott. The case of School District v. Bragdon, 23 N. H. 515, cited for the defendants, has no bearing upon this point. There is nothing in the nature of a school district to prevent the application of the maxim cited, Harris v. School District, 28 N. H. 65, and in the present case its application would not be prejudicial to the rights of third persons. Fiske v. Holmes, 41 Me. 444; Story on Agency, sec. 245. There must, therefore, be judgment for the plaintiff on the report for $208.94, and interest from the date of the writ.

As to the point first discussed in the foregoing opinion, Bell, C. J., and Doe, J., doubted.