Bew v. State | Cases | Westlaw

Complying with the wishes of counsel, we proceed, without question as to the propriety of this particular proceeding, to consider the questions presented by it. They are: First. Does the fact that an election has been ordered under section 1610 of the Code of 1892 stop the registration of electors until after it is held, because of the provision of the constitution (section 251) that “electors shall not be registered within four months next before an election at which they may offer to vote,” etc., and section 3615 of the Code of 1892, which is: “At any time not within four months of an election, the registrar may register the electors of his county at his office,” etc? Second. Does the fact that an applicant for registration as an elector has not paid taxes for the two preceding years, although possessing the required qualifications as an elector other than this, preclude his registration as such? Third. Are the persons registered within four months of an election to be held under section 1610 of the Code of 1892 entitled to vote, if otherwise qualified? We answer each question in the negative. Neither the constitution in section 251, nor the Code in section 3615, had reference to an election held in pursuance of section 1610, but to elections contemplated by the constitution. The election provided for by section 1610 is not an election in the sense of the constitution or the law on the subject of registration and election constituting chapter 113 of the Code of 1892. It is a special device for determining whether or not liquors shall be sold within a county. It is not held by those charged with holding other elections, but by appointees of the board of supervisors and their appointees. It is a county matter, initiated in a certain way, and determined in the particular mode provided. It concerns the county alone. The legislature might have adopted any other mode of determining the question as to the sale of liquors in a county. It could prohibit it unconditionally, or on any condition it might prescribe. It has chosen to submit it to an election to be ordered and held as prescribed, but that is not an election in the sense of the constitution and registration law, as we have stated above.

The payment of taxes is not a condition of registration, but of voting. It is not a matter for the registrar but for the “officers holding the election.” An applicant for registration is not required to satisfy the registrar that he has paid taxes, but he must satisfy the “officers holding the election” that he has paid the taxes required as a condition for voting. One possessing the requisite qualifications as prescribed by the constitution may be registered. Payment of taxes is not one of these qualifications. Registration and the right to vote are distinct things. One is not qualified to vote if not duly registered, but being duly registered does not entitle him to vote. It is an essential prerequisite, but does not qualify to vote. It is *869 that without which all other qualifications to be an elector go for nothing, but it is not sufficient to entitle one to vote. Registration is not made, by the constitution or law, even prima facie evidence of the right to vote. That is to be passed on by the officers holding the election, who are made “judges of the qualifications of electors.” They would reject the ballot of one who had not been registered, and should not receive the ballot merely because the person offering it had been registered. They must judge of the qualifications of electors offering to vote, of which one necessary thing is registration. The constitution (section 241) prescribes the qualifications of an elector, and makes registration one of them, and section 249 repeats with distinctness the requirement of being duly registered, but it does not make the payment of taxes a condition of registration. On the contrary, it (section 241) requires the evidence of the payment on or before the 1st day of February of the year in which he shall offer to vote of all taxes to be produced to the officers holding the election, and “who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes,” etc. Payment of taxes has reference to voting. One may be registered in January, or an earlier month, and if, on offering to vote at the November election afterwards, he shall produce to the officers holding the election satisfactory evidence that he has paid taxes as required, he should be allowed to vote, so far as the matter of taxes may affect his right. The constitution provides, in section 242, that “the legislature shall provide by law for the registration of all persons entitled to vote,” and prescribes the oath to be taken by such persons, but makes no reference in the oath to payment of taxes. Any provision by law for the registration of persons entitled to vote must conform to the constitution, and not contravene it. So much of section 3612 of the Code of 1892 as forbids the registration of a person who has not paid all taxes, etc., is not in harmony with the constitution, but in violation of it, by imposing as a condition of being registered what the constitution has made a condition of voting. It confounds a plain distinction made by the constitution, and denies to one entitled by the constitution to be registered the right to be registered. This requirement is therefore illegal and void. It is a noticeable fact worthy of observation that the only reference of the constitution, in any of its multitudinous provisions, to payment of taxes in connection with qualified electors or voting, is in section 241, where the express requirement is that the payment of taxes shall be with reference to the year in which he shall offer to vote, and that satisfactory evidence that he has paid said taxes shall be produced to the officers holding the election. Then and there, at the election, and by the officers holding it, that matter is to be attended to, according to the constitution. Section 243 of the constitution does not afford a reason for qualifying the observation made. It seems singularly misplaced in the article on “Franchise.” It imposes a poll tax in aid of the common schools, and has no sort of connection with the franchise, except incidentally, as nonpayment of a poll tax may operate, by virtue of section 241 of the constitution, to cause a denial of the right to vote. Its sole office is to provide for a poll tax, and can have no influence on the matter under consideration. It would be better placed in article 8, “Education.” While the occurrence of a special election within four months after registration does not invalidate registration, and the fact that such an election has been ordered and is to occur does not affect the right to be registered, persons registered are not entitled to vote at an election held within four months after their being registered. Section 251 of the constitution declares that “electors shall not be registered within four months next before any election at which they may offer to vote;” not that registration shall not be bad within four months of an election, but it must be one at which the elector offers to vote. Whether or not one will offer to vote is a future event. The effect of the singular form of expression employed by this section must be, from the nature of things, not to prohibit registration within four months of an election, but to establish the rule that four months shall elapse between one's registration and his right to vote. There is nothing in the constitution inhibiting being registered at any time, even on the day of an election, but it does declare, in effect, that, although registered, one shall not vote at an election held within four months of his registration. This is the rule established for elections contemplated by the constitution. The statutes providing for an election to determine whether liquors shall be sold in a county contain no specific provision as to the qualifications of electors, but contain such general regulations as to authorize the assumption that the electors meant whose votes are to determine the question are those who would be entitled to vote at any election held in pursuance of the constitution and laws of the state; and as the rule for such elections is that a person shall not vote at one held within four months of his registration, it must apply to the special election to determine as to the sale of liquors in a county. The Code is to be considered as a whole, and with reference to the constitution, and, thus viewing it, the construction is justified that the terms “legal votes,” as used in sections 1619, 1620, of the Code of 1892, mean those which would be legal votes at an election contemplated by the constitution and laws.

It results from these views that the registrar was improperly ordered to desist from registering any persons until after the election *870 to be held on the 14th October, 1893, and to refuse to register at any time such as had not paid certain taxes, but that persons registered within four months of the election will not be entitled to vote thereat, even though otherwise qualified. The learned circuit judge failed to draw the proper distinction between the right to register and the right to vote, as the legislature did, and erroneously assumed the validity of section 3612 of the Code of 1892, wherein we have shown it to be unconstitutional and void. The judgment is reversed, and the petition for mandamus is dismissed.