The People of N.C. Ex Rel . Van Bokkelen v. . Canaday

RodmaN, J.

I concur in the judgment, of the Court; but .as I cannot concur in some of the reasons of the majority, as expressed by Justice Read®, it is proper to state wherein I .differ from my Associates, and my reasons for the difference:

1. I concur in thinking that the Legislature has no right to *227 require a residence of ninety days in tbe city of Wilmington, as a qualification of voters in a city election. Much less has it a right to require such a length of residence on the same lot. The Constitution requires as a qualification of voters, a residence of twelve months in the State, and of thirty days within the county where they offer to vote. It says nothing about residence in a city as a necessary qualification to vote in a city election. It must be conceded, however, that no person can vote at a city election unless he resides in the city at the time he offers to vote.

I think also, that it is within the powfer of the Legislature to require as a qualification that the voter shall have resided for a reasonable time within the city. There can be no reason why every person (otherwise qualified,) who actually andlona fide resides in a municipality, be it a State, county, township or city, at the time he offers to vote therein, should not be allowed to vote. But it is also reasonable to require that the honafides and intended permanency of tbe residence shall be clearly proved, and this can be best done by showing that it has existed for a time long enough reasonably to create the presumption of good faith and permanency.

This time, the Constitution has fixed as to counties, at thirty days. And the rule is equally applicable to cities, if the Legislature think proper to apply it. The Legislature may shorten the time which will create the presumption of good faith and permanency, but they cannot extend it beyond what the Constitution says shall be sufficient for that purpose. If they can extend the time beyond thirty days, there is no limit.

As a ward of a city has no separate government or interest distinct from that of the city, there would seem to be no reason in requiring any time of residence in a certain ward as a qualification for voting for city officers, as distinct from ward officers, if there be any such.

But to require that the voter shall have resided for any definite time on the same lot, evidently makes a disqualification which can find no sanction in the Constitution, or in justice *228 or in reason. In large cities most of the inhabitants are boarders or tenants. Under the act we are considering, if a voter should leave a hotel for another, or if his lease should expire and he should remove to another residence in the same city, within ninety days before an election, he would be disqualified. It cannot be necessary to say more on this part of the case, except to observe that the act was enacted only about forty days before the election.

2. I also agree with the majority of the Court in its view of chat part of the actfrwhich requires voters, before being registered, and also if challenged, before voting, to prove their qualifications by witnesses, personally known to the registrars and poll-holders.

These officers are, in a certain sense, judges. The registrar (to confine myself to him.) must be satisfied of the qualifications of a voter before registering him, by the same rules of evidence which apply to other judges of facts, and an action would be against him if, after reasonable proof of qualification, he should maliciously refuse to register a person entitled to registration. No doubt the Legislature may enact general latos admitting or disqualifying certain classes of witnesses, but its power cannot be unlimited in this respect. I conceive it has no right to enact a rule of evidence for a particular case; or to impose such qualifications on witnesses as practically leave the admission of the evidence to the arbitrary opinion of the Judge, without liability to review; or to make the competency of witnesses in a particular class of cases dependent on a mere accident, aud independent of any rule professing even to be founded in reason. What could be said for a law which made the competency of a witness in all cases, for example, on trials for murder, to depend upon the irrelevant accident, that the witness was, or was not, -personally known to the Judge, or jury; and which left it in the discretion of the Judge to admit or deny his personal acquaintance, according to his caprice.

The injustice and folly of such a law would be so gross, that *229 its validity would not find an advocate. Yet that is a part of the act we are considering. The right to vote is property, and no man can be deprived of it “but by the law of the land.” (Bill of Rights, sec. 17,) and the arbitrary will of a registrar or of a judge is not “the law of the land” in the well settled meaning of the Bill of Rights.

The requirement that the witnesses to the qualification of a voter shall be personally known to the registrar, is a new and most unreasonable addition to the qualifications for voters^ which the Constitution prescribes, and in my opinion is clearly beyond the power of the Legislature.

3. In the third proposition of the majority, I do not concur.

The Constitution gives to the Legislature the general power of legislation, subject only to certain specified restrictions. The legislative power includes as part of itself the power to create and regulate municipal corporations, to prescribe what ofiicers there shall be, the manner of electing them, (subject of course, to any Constitutional provisions which may be appli. cable,) their powers, &c. The Legislature may do this by a special act for any particular municipality, for this power is elearly given by Art. VII., sec. 1, of the Constitution. In the power to create and provide for the orgnization of a city, whether this power be derived from any special provisions of the Constitution,or general grant of legislative power, it seems to me, must be included the power to divide it into wards. [See 1 Dillon Mun. Corp., sec. 19.] This being conceded, I find nothing in the Constitution whieh restrains the legislative power in its action on this subject, or requires that the several wards shall be equal in area, population or taxable property; or forbids that each ward, however unequal in all of those respects, shall send the same number of representatives to the city council. It must be admitted that there is no express re_ straint on the legislative power in these respects. But it is argued that there is a general spirit of intent to be gathered from the Constitution, to the effect that every voter shall have an equal weight in electing public ofiicers, and in the govern *230 ment of the State, or of the subordinate municipality to which he belongs. It has been said by some one before, that it is dangerous to undertake to construe a Constitution upon what may be supposed to be its general spirit, for one may be easily misled by a prepossession as to what that spirit ought to be, and the results, even of the most impartial inquiry into so uncertain a subject, can never be certain. For my part, I find no indication of any such general intent, and certainly of none which can be applied to cities and towns, by any admitted rules of reasoning.

Art. II, sec. 6, says that the House of Representatives shall be composed of one hundred and twenty representatives, to be elected by the counties respectively, according to their population, and each county shall have at least one representative, although it may not contain the requisite ratio of representation. Section 7 provides how the ratio of representation shall be ascertained, and how fractions shall be carried over, with the view of producing something like an approximation of representation to population.

These provisions are merely directory. They look only to the existing, or some similar division of the State into counties. It is left open to the Legislature to create new counties, as it has repeatedly done, without any objection to its constitutional power to do so. For aught that I see in the Constitution, it might divide the State into one hundred and twenty counties of unequal area, population and taxable property, when each would be entitled to one representative in the House. I think this instance, without going farther, is sufficient to show that there is no general controlling intent in the Constitution restraining the Legislature from an unequal distribution of political power.

That this power may be abused for partisan ends, there can be no doubt. It is indifferent to me whether in this case it has been abused, or not. This Court has authority to repress an usurpation of legislative power, but not to correct a mere *231 abuse of it. For that, the Legislature is responsible to the people alone. ’ .

It is proper here to notice a position taken in argument by the learned counsel for the plaintiff, which might seem to find some countenance in the generality of my expressions, as to the legislative power to create, organize, and regulate, municipal corporations. The contention of the learned counsel was, that the Legislature might itself appoint the municipal officers, and consequently, if it allowed them to be elected, had an unlimited power to prescribe the qualifications of the electors. I do not think that this conclusion fairly follows, from the concession to the Legislature of general legislative power over such corporations. The appointment of officers, except merely temporarily, and for the purpose of organization, is not properly a part of the legislative power. It is not included under the general grant, and clearly, it is not elsewhere specifically granted. Therefore, under section 37, of the Bill of Rights, it remains with the people, that is to say, with the people of the locality in which the office is to be exercised.

From this reasoning my conclusions are:

1. That "the Legislature may constitutionally divide a city into wards unequal in population, &c., and give to each ward an equal representation in the city council.

2. That it cannot require any qualification for voters in city elections additional to those required by the Constitution for voters in general.

3. It may require a residence of thirty days within the city-before voting, as an assurance of bona fide residence within the city at the time of voting.

. 4. That the proof of the qualification of a voter cannot be materially other than is competent under the general rules of evidence.

Pees Cubiam.

Judgment reversed, and judgment here that the relators are not entitled to the office.