Black v. Trower

• Decision Date: 08 May 1884
• Citation: 79 Va. 123
• Parties: BLACK v. TROWER AND ALS.
• Court: Virginia Supreme Court

79 Va. 123

BLACK v. TROWER AND ALS.

Supreme Court of Appeals of Virginia.

May 8, 1884

Petition for a writ of mandamus. Opinion states the case.

D. J Godwin, Christian & Christian, and Crocker, for petitioner.

Pegram & Stringfellow, R. C. Marshall, and L. R. Watts, for respondents.

OPINION

LEWIS P.

This controversy involves the title to the office of registrar for the first precinct of the first ward of the city of Norfolk. The petitioner's claim is founded on an appointment by the corporation court of that city. The respondent, Trower claims by virtue of an appointment by the so-called electoral board of that city, made on the ____ day of March, 1884. The members of that board, who are the respondents Cook, Smith and Dalton, were elected by the legislature pursuant to the provisions of an act entitled " an act to provide for the manner of choosing registrars, judges, and clerks of election," & c., in force February 14, 1884. Acts 1883-84, page 150, et seq. The first section of the act enacts that the general assembly shall once in every four years elect three qualified voters, who shall be freeholders and residents of each county and city for which they are appointed, to be known as the county or city electoral board, and who shall take the usual oath of office prescribed for city and county officers. And by subsequent sections it is made the duty of the electoral boards to appoint for their respective cities and counties the registrars and other election officers provided for by the act. The act repeals sections 8 and 24 of chapter 8, and sections 2 and 3 of chapter 7 of the Code of 1873, and all acts and parts of acts in conflict with its provisions. The 13th section excludes from the operation of the act the city of Norfolk; but this section has since been repealed. Acts 1883-84, page 229. The constitutionality of the act is denied by the petitioner because of the freehold qualification it prescribes for members of the electoral boards; and this is the first question to be determined.

We are of opinion that the petitioner's contention is well-founded. The constitution declares that " all citizens of the state * * * possess equal civil and political rights and public privileges." And the language thus employed was plainly intended not as idle or empty words, but to express a principle which lies at the very foundation of the government; for it is further ordained that the equality of rights and privileges thus declared to exist " shall not be violated on any pretence whatever." Art. I, sections 20, 21. It is manifest, therefore, that the framers of the constitution, and those who adopted it, intended to establish a government not republican in form merely, but with powers limited and defined, and with ample guarantees for the equal protection of the rights it was designed to secure. And hence it follows that a statute which discriminates in favor of one class against other classes of citizens in respect to eligibility to office, or otherwise in respect to public privileges, cannot be sustained unless authorized by the constitution itself, either expressly or by necessary implication. For if a right conferred by the constitution were not beyond the reach of legislative interference, the constitutional guarantees would be a dead letter, and the legislature instead of being controlled by, would be superior to the constitution, and unrestrained in the exercise of its power. We would therefore feel constrained to hold the act invalid, even if there were nothing more in the constitution on the subject than the provisions already quoted. But the constitution goes further. It defines the qualifications, but does not require a freehold qualification for voters, and then declares that " all persons entitled to vote shall be eligible to any office within the gift of the people, except as restricted in this constitution." Article III, section 2. Here it is evident that the framers of the constitution, having recognized the civil and political equality of all citizens of the state, intended to make eligibility to office (except as restricted in the constitution itself) co-extensive with the right of suffrage; and, accordingly, the provision finds an appropriate place in that article of the constitution which relates to the elective franchise. Now, it is a well established rule of construction, as laid down by an eminent writer, that when the constitution defines the qualifications for office, the specification is an implied prohibition against legislative interference to change or add to the qualifications thus defined. Cooley's Const. Lim. (4th ed.) 78. And among the cases to which the author refers is Barker v. The People, 3 Cowen 686, decided in 1824. In that case the chancellor, delivering the opinion of the court of errors of New York, said: " The legislature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications which the constitution has not required. If, for example, it should be enacted by law that all physicians or all persons of a particular religious sect should be ineligible to public trusts, or that all persons not possessing a certain amount of property should be excluded, any such regulation would be an infringement of the constitution; and it would be so, because should it prevail, it would be in effect an alteration of the constitution itself."

It is contended, however, that an " office within the gift of the people" is an office to be filled by popular vote and not one to be filled by the general assembly. But this we think, is an erroneous construction and contrary to the manifest intent of the framers of the constitution. The words " the people" are not unfrequently employed in different senses, and their meaning must therefore be determined by the connection, and the circumstances of the particular case, in...