Bew v. State

• Decision Date: 16 October 1893
• Citation: 13 So. 868,71 Miss. 1
• Court: Mississippi Supreme Court
• Parties: J. R. BEW, REGISTRAR, v. THE STATE

13 So. 868

71 Miss. 1

J. R. BEW, REGISTRAR, v. THE STATE

Supreme Court of Mississippi

October 16, 1893

APPEAL from a judgment of HON. R. W. WILLIAMSON, Judge, rendered in vacation, at Greenwood, in Leflore county.

This is a mandamus proceeding, on the relation of Walton Shields district attorney, against J. R. Bew, registrar of Leflore county. The petition was filed September 21, 1893, and alleges that, under § 1610, code 1892, the board of supervisors of Leflore county, on September 4, 1893, upon application of the requisite number of electors, ordered an election to be held October 14, 1893, to determine whether vinous or spirituous liquors should be sold in the county that the defendant, J. R. Bew, registrar, has continued since the order for said election was made, to register the electors of the county applying to him for registration; that said electors so registered intend to vote in the said local option election, and are being registered for that purpose that, in the registration of persons within four months of the election, the registrar is acting in violation of law; that he has registered and is registering the names of various persons who have not paid all taxes legally required of them for the two years next preceding registration, and that these will also attempt to vote in said local option election. The prayer of the petition is for a writ of mandamus, commanding the defendant to desist from the registration of all persons until after the said election, and to desist at all times from the registration of persons who have not paid their taxes as required by § 3612, code 1892.

The defendant answered the petition, admitting the allegation as to the order for the said local option election, and as to his having continued the registration of voters after the fourth day of September. He also admitted the registration of certain persons who had not paid their taxes for two years next preceding said registration, but averred that these persons had paid their taxes at the time of registration or shortly before. He also averred that no taxes had been assessed against any of these electors. He denied that he had registered any persons who, upon examination by him, were not duly qualified, and averred that he did not know what was the purpose of the electors in registering.

The agreed statement of facts shows that the local option election was duly ordered; that the defendant, since the order, proceeded to register various persons as qualified electors; that he was continuing so to register them at the time of suit; that he had registered the names of divers persons who had not paid all taxes legally required of them, and which they had an opportunity to pay, for the two preceding years next before said registration, but averred that such persons had not been assessed, and that, on the day of registration, they had paid their taxes for the purpose of registering, and that said persons, so registered as aforesaid, intended to vote in said local option election. Judgment was entered, directing the issuance of the writ of mandamus, commanding the defendant to desist from the registration of all persons until after said local option election on October 14, 1893, and to desist entirely from the registration of persons who have not paid their taxes as required by § 3612, code 1892. From this judgment the defendant appealed.

Judgment reversed and petition dismissed.

S. R. Coleman, for appellant.

Section 251, constitution 1890, limits registration of electors to four months before every election at which they may offer to vote. The word "election" in the law of elections is limited to the choice of persons for political offices, and not to questions of local option, and the like. 6 Am. & Eng. Enc. L., p. 260.

Section 249 of the constitution makes registration a prerequisite for voting at all elections, and does not apply the four months limitation.

Section 1612, code 1892, relating to dram-shops, provides that the election shall be conducted in the same manner as other elections, so far as applicable. To hold that no one should vote at such an election unless registered four months beforehand, would cause such strange confusion in so many respects, that we are forced to adopt the definition of an election as set forth in the above authority. Otherwise, we would have a petition signed by a number of persons, putting the election machinery in motion, who would not be qualified electors under the four months limitation.

Again, suppose that an election fixed by the general law should take place within two or three months after the time fixed for a local option election, who can say what electors would be barred from registration for such general election by the four months limitation invoked, on account of the local option election?

Reason, if not the plain letter of the law, would seem to require that electors should not be deprived of their rights in order that a mere police regulation may be carried into effect by the voters in a particular territory.

Frank Johnston, attorney-general, for the state.

I respectfully request the court to consider these questions:

1. Whether the registration of voters is to be suspended by reason of the fact that a local option election is ordered.

2. Whether electors, in order to be entitled to vote at such election, must have registered four months prior thereto.

In respect to the first point, my own view is that the registration should continue up to within four months preceding a regular election. The second point is doubtful. The solution of the question depends upon an interpretation of § 1612, code 1892. The constitution, § 251, clearly applies to elections contemplated by that instrument, and the same is true of the chapter on registration and elections. So that the question depends exclusively upon the construction of § 1612 of the code, and this is respectfully submitted to the court.

OPINION

CAMBELL, C. J.

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 § 1610 of the code of 1892 stop the registration of electors until after it is held, because of the provision of the constitution, § 251, that "electors shall not be registered within four months next before any election at which they may offer to vote," etc, and § 3615 of the code of 1892, which directs that "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 § 1610 of the code of 1892, entitled to vote, if otherwise qualified?

We answer each question in the negative. Neither the constitution, in § 251, nor the code, in § 3615,...