Allison v. Sharp

• Decision Date: 26 February 1936
• Docket Number: 381.
• Parties: ALLISON et al. v. SHARP et al.
• Court: North Carolina Supreme Court

184 S.E. 27

209 N.C. 477

ALLISON et al. v. SHARP et al.

No. 381.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Iredell County; Clement, Judge.

Action under the Uniform Declaratory Judgment Act by T. E. Allison and others against C. R. Sharp, Registrar for Ward No. 2 Iredell County, and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal.

Affirmed.

This is an action brought by plaintiffs against defendants (under Public Laws 1931, c. 102, N.C.Code 1935 (Michie), § 628(a) et seq., known as the Uniform Declaratory Judgment Act), for the purpose of declaring unconstitutional N.C.Code 1935 (Michie) § 5939. The defendants demurred to the complaint. The court below sustained the demurrer, and plaintiffs excepted and assigned error, and appealed to the Supreme Court.

W Avery Jones and Hosea V. Price, both of Winston-Salem, for appellants.

A. A. F. Seawell, Atty. Gen., and John W. Aiken, Asst. Atty. Gen., for appellees.

CLARKSON Justice.

The question involved: Is the act in question, N.C.Code 1935 (Michie), § 5939, unconstitutional? We think not.

As to the demurrer of defendants on the ground of misjoinder of parties plaintiff and defendant to the action, we do not think it necessary to consider.

The Uniform Declaratory Judgment Act (N.C.Code 1935 (Michie), § 628(a), is as follows: "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree."

Section 628(b) is as follows: "Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof."

Section 628(h), in part, is as follows: "In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general of the State shall also be served with a copy of the proceeding and be entitled to be heard." Edgerton v. Hood, Com'r, 205 N.C. 816, 172 S.E. 481; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Farnell v. Dongan, 207 N.C. 611, 178 S.E. 77; Borchard on Declaratory Judgments, p. 549, par. 2.

The following and other constitutional amendments were submitted to the people of this state: Acts of General Assembly of North Carolina, Adjourned Session 1900, Pub.Law 1900, Adjourned Sess., c. 2, passed on June 13, 1900, and ratified at general election 1900. We give in part the Suffrage Amendment of 1900 material to be considered in this controversy:

"Sec. 1. Every male person born in the United States, and every male person who has been naturalized, twenty-one years of age, and possessing the qualifications set out in this Article, shall be entitled to vote at any election by the people in the State, except as herein otherwise provided.

Sec. 2. He shall have resided in the State of North Carolina for two years, in the county six months, and in the precinct, ward or other election district, in which he offers to vote, four months next preceding the election: Provided, that removal from one precinct, ward or other election district, to another in the same county, shall not operate to deprive any person of the right to vote in the precinct, ward or other election district from which he has removed until four months after such removal. No person who has been convicted, or who has confessed his guilt in open court upon indictment, of any crime, the punishment of which now is, or may hereafter be, imprisonment in the State's Prison, shall be permitted to vote, unless the said person shall be first restored to citizenship in the manner prescribed by law.

Sec. 3. Every person offering to vote shall be at the time a legally registered voter as herein prescribed, and in the manner hereafter provided by law, and the General Assembly of North Carolina shall enact general registration laws to carry into effect the provisions of this Article.

Sec. 4. Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language; and before he

shall be entitled to vote, he shall have paid on or before the first day of May, of the year in which he proposes to vote, his poll tax for the previous year, as prescribed by Article V, section 1, of the Constitution," etc.

The residence under the above suffrage amendment in the state has been reduced to one year, and the poll tax provision has been eliminated. Const.N.C. art. 6, §§ 1 and 2; Gower v. Carter, 194 N.C. 293, 139 S.E. 604.

To carry into effect the above suffrage amendment, the General Assembly (Pub. Laws 1901, c. 89) enacted "An act to provide for the holding of elections in North Carolina." Section 12, in part, is as follows: "Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language, and shall show to the satisfaction of the registrar his ability to read and write any such section when he applies for registration, and before he is registered." The Constitution above set forth and the above statute have been unquestioned law of this state for over a third of a century.

The Constitution and act of the General Assembly which we are called upon to construe are:

(1) Article 6, § 4, of the Constitution of North Carolina, in part: "Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language," etc. The provisos we do not quote, as they are immaterial; the time limit having expired-December 1, 1908.

(2) N.C.Code 1935 (Michie), § 5939, in part: "Every person presenting himself for registration shall be able to read and write any section of the constitution in the English language, and shall show to the satisfaction of the registrar his ability to read and write any such section when he applies for registration, and before he is registered," etc. This act was passed (Pub.Laws 1901, c. 89, part section 12) to carry into effect the provisions of article 6, § 4, and other provisions of the Constitution as amended in 1900, supra.

The language of the Constitution is mandatory that "every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language," etc. The Constitution says "presenting himself for registration." Some one has to determine whether or not the person shall be able to read and write any section of the Constitution in the English language. Section 5939, supra, puts this duty on the registrar to "show to the satisfaction of the registrar his ability to read and write any such section when he applies for registration, and before he is registered." The Constitution gives the General Assembly the right to enact this legislation. Laws 1900, supra, part section 3: "And the General Assembly of North Carolina shall enact general registration laws to carry into effect the provisions of this article." (Const. art. 6, § 3.) This gives in clear and unmistakable language the right to the General Assembly to pass the act complained of-section 5939, supra. This is unquestionably a reasonable provision, and the registrar is the logical person to carry out the provisions of the...