Funkhouser v. Landfried , 124 W. Va. 654 ( 1942 )

I reluctantly disagree with the majority for the following reasons which I consider impelling.

It is quite generally known that the broad purpose of the Legislature in enacting the Permanent Registration Law, of which the act before us is a declared integral part, at a time when good government is being put to a test for life, was to exact and require a more rigid procedure to be followed in the holding of elections, for the purpose of preventing fraud and other disturbing practices. It is equally well known that one of the most reprehensible of those practices was and is the substitution of a "repeater", or other illegal voter, to procure and cast the ballot of a registered lawful voter whose identity can be imitated. In order to attempt to stamp out that rather cunning thievery, the lawmakers provided that when registering, voters, with certain clearly defined exceptions, should fill out and sign two registration cards answering prescribed questions. After providing that the signature of the applicant for registration on "both of filled forms" shall be written in ink, which in itself indicates the legislative purpose to make that requirement mandatory, sections twenty-eight and twenty-nine with great exactness deal with the circumstances under which alone the registrant shall be excused from signing the registration record. Those sections read as follows:

Sec. 28. Registration of Applicants Unable to Write. — If an applicant, although physically able, shall allege inability to sign his name, the registrar or clerk of the county court shall require him to present an affidavit of a qualified elector within the same county who is personally acquainted with the applicant. Such elector shall, in his affidavit, state his own residence and affirm that the statements made by the applicant for registration are true. Upon the presentation of such affidavit, the applicant shall be permitted to sign the registration form by making his mark.

If an applicant is literate, but physically unable to sign his name, the registrar or clerk of the county court shall insert the name of the applicant on the registration form together with a notation of the nature of the disability."

"Sec. 29. Disability Suffered Since Registration. — Any voter who has since the time of registration suffered a physical disability which renders him unable to sign his name, may at any time except the two weeks immediately preceding any election personally make application under oath to the clerk of the county court to have such fact entered on his registration record, together with a statement of the exact nature of his physical disability, and such entry shall be made accordingly. If such applicant is physically unable to appear before the clerk of the county court to cause such change to be made on the registration record, he may request the clerk of the county court to mail him the necessary forms, and the clerk of the county court upon receipt of such forms properly filled, together with a physician's certificate affirming such disability, shall alter the registration record of the voter accordingly: Provided, That when the clerk of the county court shall ascertain that any voter who has declared himself physically disabled or illiterate, no longer suffers from such disability or illiteracy, he shall forthwith cancel on the registration record the entry relating to physical disability or illiteracy and shall notify such elector by mail of his action."

There is no question that the requirement of the Permanent Registration Law to sign the registration cards is mandatory, the Legislature having prescribed the only conditions under which it is to be excused. Obviously, it was the plain purpose of the Legislature that that act should be read in pari materia with the act now before the Court when it stated that it was its purpose of integrate "the machinery of primary and general elections." The two acts were contemporaneously adopted.

There can be no doubt, to my mind, from anything approaching a logical deduction that the provisions requiring the voter to sign the registration cards and that requiring the signature on the poll book when he casts his ballot were intended to operate in unison and with equal force, they being the only two such requirements in the entire election law. Why require the prospective voters to sign the registration cards? The plain answer is based upon the corresponding requirement to sign the poll book. The signature is the generally adopted, outstanding means of identification. It operates only by comparison. It is utterly useless without that means. Consequently, the provision requiring the registration card to be signed would be no more effective than a one-ended bridge if there were nothing provided with which to compare that required signature. I, therefore, believe that to hold that the voter is not required as a condition precedent to casting his ballot, to sign the poll book devitalizes the entire act in question in a manner clearly counter to the purpose of the lawmakers.

What is said in the majority opinion concerning the amendment of the provision in question is the only matter of any consequence that can be urged to sustain the construction adopted by the majority of the Court. I believe the act is entirely unambiguous, and if so, that a court seeking its construction is adopting a practice which, if followed in the future, will result in a tremendous amount of wasted energy.Soon Hing v. Crowley, 113 U.S. 703, 710, 5 S. Ct. 730, 28 Law Ed. 1145; Shenandoah Lime Co. v. Governor, 115 Va. 865,80 S.E. 753, Ann. Cas. 1915C, 973. But let us approach the matter as though the legislative history actually entered into our process of reasoning, though the Supreme Court has termed it a "very unsafe and unreliable" approach. Andrews v. Hovey,124 U.S. 694, 716, 8 S. Ct. 676, 31 Law Ed. 557.

What is an amendment to a proposed piece of legislation? No amendment is to be considered as though adopted for the purpose of emasculating the entire act or depriving it of its virility. All amendments are not to be considered as though the purpose for which they were offered has been actually accomplished and brought about by their adoption. It can, therefore, be conceded that the purpose of the amendment, perhaps, was to enable a voter to cast his ballot without signing the poll book. Amendments are usually matters of compromise, and the legislative history of the Permanent Registration Law, and of the acts integrated therewith, shows plainly that there was a powerful underlying opposition to their enactment. The suggested amendment probably was thought by some to accomplish one purpose, by others to accomplish another. Unless their meaning is perfectly plain, no amendment should be construed as overcoming in any vital aspect the outstanding purpose of the Legislature in enacting the statute in question. The fundamental or major purpose of the act is still the controlling feature in construing or interpreting the entire body of the act which is to be read as a whole. Therefore, amendments which are subject to a construction in full accord with the major purpose, or to a construction in diametrical conflict therewith, in spite of anything definite that might be shown to establish beyond peradventure the purpose of those sponsoring the amendment, are to be looked upon as though they had not altered the act in a manner that would render other vital remaining provisions ineffective. If they change the act, the act itself necessarily must be preserved; otherwise there could be no change. A change does not annihilate; neither should an amendment. If the act is to be preserved, its admitted purpose must be put into effect. Unity v. Burrage, 103 U.S. 447, 457,26 Law Ed. 405. (See 25 Rawle C. L. 999).

The discussion in the majority opinion concerning the use of the word "shall" in a non-mandatory sense seems to be an effort to maintain a negative premise to the end that that word, which appears dozens of times in our election laws, unless accompanied by the imposition of a penalty, means only legislative advice and not a binding rule of conduct. I believe that the plain purpose of the statute should outweigh the advanced rules of syntax, even when properly applied, and that it is not the usual legislative purpose nor intention to stop at advising the proper course of conduct. But even directory provisions of a statute must be substantially complied with. Here they were not.

The reference in the majority opinion to Article IV, Section 1 of our constitution defining the persons who shall be entitled to vote, of course, is to be read in the light of the last section of the same article imposing upon the Legislature the duty to enact proper laws for the registration of qualified voters, the latter section having been adopted to take the place of a provision to the effect that no person should be denied or refused the privilege of voting because not registered. I believe that this specific question can be boiled down to the proposition that voting in this state cannot be limited nor restricted, but that it can and must be regulated at least with regard to registration, which, of course, is necessarily coupled with the concurrent right to regulate voting.

There having been a plain showing that those who voted at the precinct in controversy did not sign the poll book, I would award the peremptory writ.

Judge Fox concurs in this dissent.