The People of N.C. Ex Rel . Van Bokkelen v. . Canaday , 73 N.C. 198 ( 1875 )

Reade, J.

Our government is founded on the will of the people. Their will is expressed by the ballot. The ballot embraces every citizen twenty-one years old, who has had a residence in the State for twelve months and in the county where he offers to vote, for thirty days. There is no other qualification required. Property qualification for voters and officeholders, which our former Constitutions required, and which many thought important, have passed away, and are now regarded as antiquated. Not only is freedom to vote and hold office secured in our present Constitution, but it is so imbedded in the hearts of the people that it was thought necessary to stipulate against any interference with it by a contemplated Convention to alter the Constitution. The act of the last General Assembly calling a Convention has a provision that the Convention “shall not require, or propose any educational or property qualification for office, or voting,” and requires the delegates to take an oath to observe it.

Whether that is wise or unwise, the Court can give no opinion. Our province is to expound the Constitution and laws as they are made, and not to make them.

The Constitution provides that every male person twenty-one years old, resident in the State twelve months, and in the county thirty days, shall be an elector — Art. YI, sec. 1. An elector for what? The Constitution does not say for what. Does it mean elector for President, or for members of Congress, or for Governor, or for Judges, or for members of the General Assembly, or for county officers, or for township or town officers, or for what else ? There it stands by itself, without explanation — that every such person shall be an elector —a voter. It evidently means to designate those persons as a class, to vote generally whenever the polls are opened and elections held for anything connected with the general government, or the State or locA governments. Just as a class of persons are designated as qualified for jurors.

And so in Art. YII, sec. 1, it is provided that all county elections shall be by “ the qualified voters thereof.” But who are they ? There is no way of determining except to look back to the class designated above.

And so the 5th section provides, that toionship elections shall be by the “ qualified voters thereof.” And we have to look to the class to find out who they are.

And so Art. YII, sec. 7, provides that no county, city, tovm, or other municipal corporation shall contract any debt, &e., unless by a vote of a majority of the “qualified voters therein and we have to look to the class to find who they are.

Here counties, cities and towns are grouped together; and so are their qualified voters. And except in this way there are no qualifications prescribed for voters in cities and towns. But cities and towns, like counties and townships, are parts and parcels of the State, organized for the convenience of local self-government. And the qualifications of their voters are the same. It follows, that the General Assembly cannot in any way change the qualifications of voters in State, county, township, city or town elections.

And yet the act, which we are considering, requires a residence of ninety days, instead of thirty. And if ninety days may be required, a year, or years, may be. And so, in many of our young and growing towns, a majority of the citizens may be excluded, and the government given to “ the oldest inhabitantsor, if long residence may be made a qualification, so it may be made a disqualification, and then the government may be given to the youngest inhabitants. And so, if these qualifications may be added,, then any others may; just as we find that in one of the town charters granted by the last General Assembly, it is provided that, in addition to the citizens of the town, all persons who have lived in the county twelve months “ and who own taxable real estate in said town, who have paid all the taxes,” &c., shall be allowed to vote. Acts of 1874-5, chap. 157, private laws. Surely the Legislature had no power to put any portion of the people of the State under such a government. If they can do that, then they can put Wilmington under the government of the land owners of New Hanover county.

For illustration : a man presents himself at a town election and says, I have voted in the State election, in the county election, in the township election, and now I want to vote in the town election, where I have lived thirty days. His vote is rejected, because he has not resided there ninety days. In vain we look in the Constitution for any such qualification. The General Assembly has disfranchised hitn, and that in a ease which comes much nearer home to him than any other election ; for the town government affects his business, trade, market, health, comfort, pleasure, taxes, property and person.

We are of the opinion that the qualifications for a voter in a city or town are, citizenship, twenty one years of age, twelve months’ residence in the State, and thirty days in the city or town.

II. Again : The act provides that before an election there shall be a registration of voters, and only those who register, can vote. The first ward is made a registration and election precinct; and so with the second. The third ward is divided by metes and bounds, into four precincts. Of course every voter must register in the ward and in the precinct where he lives, and in no other, and must vote where he registers, the object being to prevent fraud by “ repeating.” But a large portion of the third ward — on the west side of the river— was, by mistake probably, not included in any of the precincts. And of course they cannot register or vote. And Perry v. Whitaker, 71 N. C. Rep., is an express decision that that makes an election void.

Indeed, it would seem that the registration provision for such parts of the city as are embraced, are so impracticable as to amount to the disfranchisement of the voters.

The Constitution ordains that the General Assembly shall provide for the registration of voters, and that no one shall vote without registration. Art. VI, see. 2. This means that the General Assembly shall provide the conveniences and necessaries, so that the voters can register. It is to facilitate the exercise of the right of the ballot; and not to defeat it. It is true that this includes the power and the duty to throw such guards around, as will protect the ballot from fraud. And therefore our general election law provides, that when a voter offers to register, or vote, he may be challenged, and required to take an oath as to his qualifications. And so in our general law regulating town elections. (Battle’s Revisal.)

There can be no objection to that, and it prevents no man from voting, and puts him to no inconvenience. If a man will swear that he has the qualifications, then he can register and vote; unless it can be proved against him that he is not entitled. And in that case he can be rejected. But the act under consideration is framed upon the idea of making the ballot as difficult as possible. Iudeed it makes it impracticable. It provides that “ any elector may, and it shall be the duty of the registrar to challenge the right of any person to register, known or suspected not to be lawfully entitled to register; and when such challenge shall be made, it shall be the duty of the registrar to require such person to prove to the satisfaction of the registrar the fact of his being of lawful age to vote, the fact of his residence for twelve months in the Sate, and for ninety days in the lot,” &e. It will be noted that any bystander may challenge the voter without proving anything against him, and the voter is not allowed to swear to his qualifications; but he must prove them by the oaths of others, and these others must be known to the registrar, and the registrar must be satisfied. Now', howr is it possible for persons who move into Wilmington from other counties in the State to get witnesses from a distance known to registrars in Wilmington to prove their ages and their residences ? It is impossible'. It is a practical denial of the right to register and vote.

III. It has been already said that towns and cities are but parts and parcels of the State for the convenience of local self-government, and that the voters, and the rights of voters, are the same as in the State government. A fundamental principle in the State government is, that representation shall be apportioned to the popular vote as near as may be. Large counties and large districts shall have more representatives than small ones, so that not only every man may vote, bwfc his vote shall count in the representative body.

The Act creates a representative legislative body — Board of nine Aldermen, for the city of Wilmington. Now, if every voter could vote for all of the nine Aldermen, of course every man’s vote would count. Or, if the city were divided into three wards, as nearly equal as may be, and each ward elect three of the Aldermen, then every vote would count. But instead of that the city is divided into three wards — the first has about 400 voters; the second about 400; and the third 2,800. So that one vote in the first and second wards counts .as much as seven votes in the third ward. That this is a plain violation of fundamental principles, the apportionment of representation, is too plain for argument. That the Legislature never intended such a result, we are obliged to assume. Nor is there anything stated in the case that can reasonably account for it. To the suggestion tha't it was to protect property from irresponsible voters, it is answered, that it is stated in the case, that the valuation of property in the third ward is about equal to the valuation in both the other wards put together. .And to the suggestion that it was to separate the colored from the white vote, it is answered, that while most of the colored voters are in the third ward, yet there are also more white voters in the third than in both the other wards together. And to the suggestion that it was to favor the intelligent and educated anü give them the control of the city government, it is. answered, that by the same Legislature such a principle is expressly repudiated as existing in the present Constitution, and is expressly prohibited from being incorporated in any subsequent Constitution. The Convention “ shall not require, nor propose any educational or property qualification for office or voting.” And to the suggestion that it is a plan devised by the city for' its better government, it is answered, that not one-voter in five voted at the election.

At any rate, without questioning the intent of the Legislature, we see that the effect of the act'is to violate the fundamental principles of the Constitution, and their own cherished and declared purpose to maintain free manhood suffrage, and to eschew educational or property qualifications. And, as is-said in Jacobs v. Smallwood, 63 N. C. Rep., it is the effect of the act, and not the intention of the Legislature, which renders it void.

It is usual in quo warranto to inquire first into the title of the defendant to the office; but we arc precluded from that inquiry here by the case sent us, as we are confined to the record, which is as follows ^

‘ Upon the foregoing facts it is submitted to the honorable, the Superior Court of New Hanover county, to determine the following questions:

1. Whether the relators of the plaintiff are now entitled to .the said office of Aldermen of said city?

2. If not entitled now, will they be so entitled from and .■after the first Thursday in August, &c. ?”

And it is agreed that if the Court shall be of opinion in the .•affirmative upon either one of said two questions, judgment •shall be rendered that the defendants shall be ousted from the ¿said offices, and that the relators be put in possession thereof.

(Signed) ROBERT STRANGE,

GEORGE DAYIS,

Attorneys for the Plaintiffs.

DANIEL L." RUSSELL,

EDWARD CANTWELL,.

Attorneys for Defendants.

It was insisted upon the argument here, that if the title of ■the relators is bad, the title of .the defendants is bad also, and -for the same reason. But it will be seen that the only pomt .presented to us is, as to the title of the relators.

There is error.