Smith v. City of Wilmington , 98 N.C. 343 ( 1887 )

Mbkrimon, J.,

(after stating the case). It is not questioned, 'that in order to authorize the city of Wilmington, by its proper authorities, to subscribe for one hundred thousand dollars of the capital stock of the railroad company mentioned, the proposition to subscribe therefor must have received in its favor at the election in question, a majority of the votes of the qualified voters of that city.

By the terms “ qualified voter ” is implied, not simply that the person is eligible to be a voter, but as well and necessarily that he is registered as such in the way and manner prescribed by law.

A “ qualified voter ” is one duly registered. Southerland v. Goldsboro, 96 N. C., 49; Duke v. Brown, Ibid., 127; McDowell v. The Construction Co., Ibid., 514; Wood v. Oxford, 97 N. C., 227.

The registration of voters is essential and very important..

As was said in McDowell v. The Construction Co., supra, the purpose of it is, “ to ascertain who is entitled to vote, and to facilitate the exercise of the elective franchise by citizens so entitled, and to prevent unlawful voting, fraud and confusion in all elections by the people.” To render it effectual— to make it serve the purpose of the law — it must he made by the proper officers, in the way and manner and at the times prescribed by the law. The statutory regulations in such respects are not simply directory; they are in their substance mandatory as well; they do not imply discretion in those authorities charged with the execution of them, and moreover, to allow the exercise of such discretion in respect to a matter essential, affecting the rights of individuals and the public of great moment, might — would no doubt oftentimes — lead to private and public wrong, and serious confusion.

Whenever a person eligible to become a qualified voter, has been duly registered as such, he at once possesses the right to vote at all public elections as allowed by and at the time and place prescribed by law, until in some way he looses such right, and his right must be recognized and he must be treated and counted as a voter, whenever under and in pursuance of the law, it becomes necessary to have regard to him as such. Particularly, for the present purpose, he-cannot be required to re-register, or register a second time, at the same voting place, as a pre-requisite to the right to-vote then, unless the law allows or requires such re-registration. He continues to have the right to vote as a qualified voter and be treated as such in all respects, until he loses or is dispossessed of such right by. virtue of the law, or as it. allows.

Now, applying what we have said, we are of opinion that, the election in question was ineffectual and void, because the Mayor and Aldemen had no authority to order a new registration of the voters of the City of Wilmington just before.that election, as they undertook to do, ignoring and paying no regard to the regular registration of March of the present year, as they should have done, but, on the contrary, declaring in effect by their action, that the registered voters of the last mentioned registration could not vote at the election in August unless they registered anew, under their order. The election was held, the result thereof ascertained and declared — the whole based upon and having reference and regard only to the new registration mentioned. By it, there were at the election 1,676 registered voters. Of these 1,049 voted in favor of subscription, a large majority of the whole number of voters registered. But at the regular registration of voters in March of the present year, there were '2,735 registered voters, and this does not include such persons as become eligible to register after that time. The regularly registered voters in the city in 1881 for the general election was 4,275. The facts tend strongly to show that the votes cast at the election in August was much short of a majority of the qualified voters, if regard be had to the regular registration in March last, and very far short of it if there had been a full registration. This is not denied.

The learned counsel of the appellees, in his able argument before us, contended that the Mayor and Aldermen had authority to order the new registration, and therefore, the election based upon it, and the result ascertained from reference to it, was valid.

We are very sure that this construction is not well founded and cannot be sustained. They derive their authority in respect to registration from the charter of the city; the charter of the railroad company-mentioned does not, nor does it purport, to enlarge it, further than, in the case provided for, to order an election and take such further action as the result of it may render necessary.

The city charter provides, “that before the first election of Aldermen to be held under the provisions of this act, and biennially thereafter, before every such election, there shall be a new registration in each of the said tuards, of the persons qualified to vote in the same,” &c. Thus, and. thus only, is the power to order or provide for a “new registration” conferred; it is plainly to be exercised biennially, and there are no words, phraseology, provision, or things required to be done, that imply, or from which it can be reasonably inferred, that new registrations at other times might be required to be made.

It was further insisted, that inasmuch as before the regular biennial city election, there must be a like new registration, one before the election-in question, was necessary, because the charter of the railroad company named required that this election should be held “ in the manner prescribed by law for holding other elections” in the city. This is a misapprehension of the clause of the charter referred to. It provides that '“such election shall be held after thirty days’notice, specifying the amount of subscription to be voted for, and to what company it is proposed to subscribe, posted at the court house door and three other public places in said county, township, city or town, at the several voting places, and by persons appointed in the manner that persons are appointed for holding other elections in said county, township, city or town, and the returns thereof shall be made, and the results declared and certified, as prescribed by law in such other elections.” This, it seems to us, in plain terms, refers only to holding the election, ascertaining its result and certifying the same — not a word is used as implying or pointing to registration ; the omission to mention or refer to it in some way, is singular, if the purpose was to require a new registration. Regis-' tration is one thing — to hold the election, ascertain and certify the result, is essentially a very different one. Registration precedes the holding of an election. Such inference of authority is too remote and strained to be allowed, especially in the absence of necessity justifying it. The admitted facts go to show, that there was a total absence of necessity for such new registration; indeed, they more than hint at a purpose to take undue advantage of it by some persons friendly to the subscription.

It was also contended, that authority to order and require such new registration might he derived from the statute, {The Code, §2675,) which authorizes the board of county commissioners to direct a new registration of voters as prescribed, first giving thirty days’ notice, &c.; and the statute, {The Code, §3795,) which requires the corporate authorities of every city and town to cause a registration to be made of all the qualified voters residing therein, “ under the rules and regulations prescribed for registration of voters for general elections,” and the statute, {The Code, §3827,) which makes the general statutory provisions as to “ towns and cities” applicable to all incorporated cities and towns, when the same are not inconsistent with special acts of incorporation or special laws in reference thereto. This cannot be allowed. The Mayor and Aldermen did not profess to exercise authority thus derived — they did not direct that thirty days’ notice be given of such new registration, nor does it appear that such notice was given — they simply ordered “that books be opened for a new registration of voters of the city” at places designated. It may well be questioned whether, if they had given proper notice, they could thus derive such authority, because the charter of the city expressly provides that new registration of voters shall be made biennially, but we need not decide this question, as the general statute was not observed — it does not so appear.

The registration of March, 1887, should have been scrutinized — purged of the names of persons who for any cause had ceased to be voters — and observed, and opportunity afforded to persons who became eligible to register and become qualified voters at the time of the election, and the result of the election should have been ascertained by the number of qualified voters thus appearing.

Authority to provide for the registration of pérsons who become eligible as voters after the last preceding election, is given by the statute, (The Code, §§2675-3795.) As to this, there is no provision in the city charter, and hence, the general statutorjr provision cited, applies. McDowell v. The Construction Co., supra; Perry v. Whittaker, 71 N. C., 475.

There is error. The judgment must be reversed, and judgment declaring the election void and granting an injunction as prayed for in the complaint, entered in favor of the plaintiffs.

To that end let this opinion be certified to the Superior Court.

Reversed.