In Re the Constitutional Amendment

EXECUTIVE DEPARTMENT, PROVIDENCE, November 20, 1888.

To the Honorable the Judges of the Supreme Court:

By virtue of constitutional authority I respectfully request your Honors' opinion upon the following questions:

"1. Does the recent constitutional amendment, entitled article of amendment 7, repeal the provisions of chapter 7 of the Public Statutes, and the amendments thereof, or any of them?

"2. Is there any officer or class of officers now authorized to receive the registry of persons entitled to register under the provisions of article of amendment 7 of the constitution?

"3. Will the persons (who, I am informed, are numerous) that have registered this year, before article of amendment 7 became a part of the constitution, under authority of law in force at the time of such registering, or who shall register after said article became a part of the constitution, but before the General Assembly shall provide by law with what officers names shall be registered, be legally registered? or will they be obliged to register anew, after the passage of proper legislation by the General Assembly, in order to become voters under and by virtue of said article 7?

"4. Will persons taxed on personal property to the amount of $134, who shall not have registered this year, and whose names, but for the adoption of article of amendment 7, would stand upon the voting lists on the 31st day of December, 1888, be entitled to vote in 1889, under and by virtue of the provisions of said article?"

ROYAL C. TAFT, Governor.

OPINION OF THE COURT.

To His Excellency Royal C. Taft, Governor of the State of Rhode Island and Providence Plantations:

In response to the questions we have received from your Excellency, we have the honor to submit the following opinion: The several questions involve one subject, which is the constitutionality of chapter 7 of the Public Statutes since the adoption of article 7 of the amendments to the constitution. It is evident, upon reading the chapter, that such of its provisions as relate to the assessment and payment of a registry tax are no longer in harmony with the constitution as now amended, and that they are therefore annulled. Other parts of the chapter, however, relate to the registering and listing of voters and to the canvassing of the lists. It has been decided in this State that a statute may be unconstitutional in part and constitutional in part; and that, while the unconstitutional part may be void, the constitutional part may be valid and may be carried into effect.State v. Clark, 15 R.I. 383. The test in such cases is, whether the parts are so interwoven and interdependent that they can stand only as a whole, as in State v. Tonks, 15 R.I. 385, or whether they are capable of separation, and of independent administration, as in the case first cited. Striking out of the chapter in question all that relates to the assessment and payment of a registry tax, we think that the provisions relating to registration and listing are so distinct and independent that they may stand and be administered, without in any way conflicting with the constitution as amended. Doubtless they are not as efficient as may be desirable, and not as complete or plain as they may be made by revision and amendment; nevertheless, as far as the matters of inquiry are concerned, we think they are sufficient.

The original article of the constitution required registration for a class of voters. The statute prescribed the method of registration. Had the constitution stood originally as it does now, the method of registration prescribed in chapter 7 would not have been in conflict with it. The amendment requires, in language precisely similar to that of the original article, that the voter shall be registered, and he is none the less registered under an existing law than he would be under one subsequently adopted.

In either case the requirement of the constitution is fulfilled, and inasmuch as the amendment requiring registration is not a new provision added to the constitution, but simply an enlargement and substitute for an existing provision, it is a reasonable presumption that the terms of the amendment were not intended to annul, by implication, the method of registration already established by law.

Section 2 of chapter 7 provides that persons qualified to vote, "upon being registered and the payment of a registry tax," shall go to the town clerk and register their names. The words relating to the payment of a registry tax are descriptive, in part, of the persons who are to register; but, since this part of the description is no longer applicable to voters, and the evident purpose of the section is to secure registration, we see no reason why the rest of the section may not stand, as it is complete in itself and in no way conflicts with the constitution. It points out the class of persons who are to register, the officer who is to attend to it, and the way in which it is to be done. We think, therefore, that town clerks may receive the registry of persons as heretofore, and that those who have thus already registered, or who may hereafter do so, must be deemed to be legally registered.

In regard to persons taxed on personal property, it is provided in section 3 of chapter 7 that the town and ward clerks shall annually place upon the registry list the names of the several persons who have been previously upon the voting list against whom a tax of one dollar or upwards shall have been assessed, and that such persons need not register annually. Both the former and present provisions of the constitution require a registration. But in the opinion In re the Registry Laws,12 R.I. 580, it was held that it was not necessary for persons voting upon the payment of a tax to re-register their names after the passage of the law, now chapter 7; but that such persons were entitled to have their names put upon the voting list, if they were already registered in compliance with the law in force before the passage of the act. We do not see that the present case is different. If a name could be placed upon the registry list by the town clerk, according to the provisions of that law, under the former article of the constitution, it can also be done now. The present provision is simply that the person's "name shall be registered." If he was duly registered before the amendment, there is nothing in the terms of the amendment to invalidate such registry.

It is to be observed, however, that, under the former provision of the constitution, persons who paid a tax of one dollar or upwards, assessed on their property, were entitled to vote as taxpayers; and chapter 7 provides for placing upon the registry list those who have paid such a tax. The present provision requires, not the payment of that amount of tax, but that the person claiming to vote upon this qualification shall have paid a tax assessed upon his property valued at least at one hundred and thirty four dollars.

It may happen that the tax on a valuation of one hundred and thirty four dollars will be more than one dollar, or it may be less. The constitutional qualification is the tax on one hundred and thirty four dollars. If, in a given case, this amounts to one dollar or more, the name will be carried along by the town clerk as now provided. If it does not amount to one dollar, the name will not be carried along, because there is no provision for it, and the person will be obliged to register. IF the tax amounts to one dollar, but the property taxed is not of the value of one hundred and thirty four dollars, the name may be carried on to the registry list, under the present law, as a registry, without infringing the constitutional provision; still the person would not thereby have the right to vote as a taxpayer, and it would be the duty of the canvassers, in revising the list, to strike off such names from the list of those entitled to vote as taxpayers.

Judge Wilbur is absent from the city, and we have not been able to confer with him upon the questions.

THOMAS DURFEE, CHARLES MATTESON, JOHN H. STINESS, P.E. TILLINGHAST.