Bokkelen v. Canaday
| Citation | 73 N.C. 198,21 Am.Rep. 465 |
| Parties | THE PEOPLE of the STATE of NORTH CAROLINA, upon the relation of ADRIAN H. VAN BOKKELEN and others v. WILLIAM P. CANADAY and others. |
| Decision Date | 30 June 1875 |
| Court | United States State Supreme Court of North Carolina |
*1 Cities and towns, like counties and townships, are parts and parcels of the State, organized for the convenience of local self-government; and the qualifications of voters are the same, to wit, citizenship, twenty-one years of age, twelve months residence in the State, and thirty days in the city or town.
The General Assembly cannot in any way change the qualifications of voters in State, county, township, city or town elections. Hence, so much of the act amending the charter of the city of Wilmington, ratified on the 3d day of February, 1875, as requires a residence of ninety days instead of thirty, is unconstitutional and consequently void.
The 8th section of the act amending the charter of the city of Wilmington, ratified the 3d day of February, 1875, providing for the registration of voters, directs that the different wards of the city should be divided into precincts; in this division, a large portion of the third ward is not included in any precinct, and cannot register or vote: Held, that the election had under said act, on the second Thursday of March, 1875, was therefore void.
So much of said Act as requires a voter, when challenged, to prove by other persons of credibility, known to them, that the voter is of lawful age, has resided twelve months in the State and ninety days in the lot, in the block and in the ward specified in the registration book, is a practical denial of the right to register and vote, and is void.
So much of said act as gives to each of the first and second wards, with 400 voters each, a representative of three aldermen, and to the third ward with 2,800 votes, also a like representative of three aldermen, violates the fundamental principles of our Constitution, and is void.
(The cases of Perry v. Whitaker, 71 N. C. Rep. 475, and Jacobs v. Smallwood, 63 N. C. Rep. 112, cited and approved.)
CASE AGREED, tried before Kerr, J., at Spring Term, 1875, NEW HANOVER Superior Court.
The case was submitted for the decision of the Court upon the follow facts agreed:
That on the first Monday in May, A. D. 1873, under the act of the General Assembly, ratified the 20th day of December, A. D. 1870, entitled “An Act Concerning the City of Wilmington,” Alrich Adrian, S. H. Fishblate, Roger Moore, Jacob Wise, and the defendants W. P. Canaday, L. E. Rice, Duncan Holmes, W. H. Banks, Hiram Hawkins and Henry Brewington were duly elected Aldermen of the City of Wilmington, and immediately thereafter entered upon the duties of the said office. On the 15th day of July, 1873, Jacob Wise resigned his said office and Isaac B. Grainger was elected by the Board of Aldermen to fill the vacancy. On the 2d day of October, 1874, the said Grainger resigned his office, and John W. Atkinson was elected to fill the vacancy. On the 10th day of March, 1875, the said Alrich Adrian, S. H. Fishblate, Roger Moore and John W. Atkinson all resigned their offices, and the other defendants, Jesse J. Cassiday, Joseph H. Neff, Thomas M. Gardner and Benjamin G. Bates were, by the said Board elected to fill the vacancies caused by the resignation of the parties aforesaid, and immediately entered upon the duties of their offices.
*2 By an act of the General Assembly, ratified the 3rd day of November, A. D. 1873, entitled “An Act relating to the City of Wilmington,” it was directed that the election for aldermen of said city should be held “biennially on the days which now are, or hereafter may be, appointed by law for the election of the Board of Trustees for the township of said city. It was further provided by said act, “that the persons who may be in office as Mayor and Aldermen of said city on ?? first day of May next, (that is to say, on the 1st ?? ??74,) shall continue in office until their successors shall be elected, at the next regular election as herein provided, and until such successors shall be duly qualified.
At the time of the ratification of the said act, the next regular election for the Board of Trustees for the township of said city was appointed by law to be held on the first Thursday in August, 1875.
By an act of the General Assembly ratified the 3rd day of February, A. D. 1875, entitled “an act to amend the charter of the city of Wilmington,” it was enacted that the said city should be divided into three wards therein described and bounded, that the corporate powers granted to the city should be exercised by a Board of Aldermen to consist of nine members, three to be elected by each ward, and that an election for nine Aldermen of said city should be held on the second Thursday in March, 1875. The Aldermen elected at the first election held under the said act “shall enter upon the discharge of their duties, when the term of office of the present Board of Aldermen shall expire by operation of law, and shall hold their offices until the first Thursday in April, 1877.
An election was duly held according to the terms and provisions of said act, at which election the relators, A. H. Van Bokkelen, F. W. Kerchner and W. L. DeRosset, in the first ward, W. L. Smith, L. H. Bowden and S. W. Vick in the second ward, and J. D. Love, T. W. Player and W. D. Mahn in the third ward, received a majority of all the votes cast; all the provisions of the said act were duly complied with, and the judges of election for the several wards publicly proclaimed the result of the voting, and certified in writing according to the provisions of the said act that they were duly elected Aldermen of the said city for the several wards as aforesaid, and filed copies of the said certificates with the Clerk of the city, and published the same in the newspapers of the city as required by the provisions of the act.
The Aldermen above named duly qualified by taking and subscribing before a Justice of the Peace, for the county of New Hanover the oath prescribed in the said act, and since the said election and qualification of the relators, the defendants have continued to exercise the duties of the said office, and have withheld and continue to withhold from the relators the said offices of Aldermen of the city.
All the acts of the General Assembly hereinbefore referred to, are declared to be a part of this case for all intents and purposes, as if they were herein fully set forth.
*3 The whole number of male persons, citizens of the United States, twenty-one years old or upwards, being inhabitants of said city, as estimated upon the basis of past elections is about thirty-six hundred, of whom about twenty-two hundred are colored, and the remainder white. The number of such persons in the first ward, is about three hundred and ninety-seven, of whom about two hundred and ninety-one are white, and the remainder colored.
The number of such persons in the second ward is about three hundred and sixty, of whom about two hundred and eighty-one are white and the remainder colored. The whole number of such persons in the third ward is about twenty-eight hundred, of whom about eight hundred are white and the remainder colored.
The assessed valuation of the real estate of the city of Wilmington as to the several wards is as follows, to wit: In the first ward $950,000, in the second $1,180,000 and in the third about $2,000,000.
At the election held on the 11th day of March, 1875, votes were cast as follows: In the first ward the whole number of votes cast was one hundred and sixty, in the second ward the whole number of votes cast was one hundred and ninety-three, in the third ward the whole number of votes cast was three hundred. The defendants did not participate in said election nor recognize its validity, but on the contrary they, or a part of them, advised and counseled the people not to recognize the election.
That portion of the territory within the corporate limits, designated on the map as third ward, west side of the river, is not embraced in any of the registration precincts provided for in the act of Feb. 3rd, 1875, but is included in the third ward, as set out in said act.
Prior to the meeting of the last General Assembly notice was given for thirty days by publication in the “Daily Journal,” a newspaper published in the city of Wilmington, and which circulates in the county of New Hanover. The following was the form of said notice, to-wit:
“Application will be made to the next General Assembly of North Carolina to amend the charter of the city of Wilmington, and for other purposes.”
A considerable portion of the third ward consists of unimproved and uninhabited lots, on the outskirts of the city.
Upon the foregoing facts it is submitted to the Court to determine the following questions:
1. Whether the relators of the plaintiff are now entitled to the said offices of aldermen of the said city.
2. If not entitled now will they be so entitled from and after the first Thursday in August next, being the day appointed by law for holding the next election for the Board of Trustees for the township of said city.
And it is agreed that if the Court shall be of opinion in the affirmative upon either of the said two questions, judgment shall be rendered that the defendants be ousted from the said offices and that the relators be put in possession thereof.
His Honor gave judgment in favor of the relators of the plaintiff, that the defendants be ousted from the possession of said offices and the relators be put in possession, &c. From this judgment the defendants appealed.
Russell, Shipp & Bailey, Fowle, Badger and Haughton, for appellants , submitted.
*4 That the General Assembly has no such power is so manifest that it is surprising that the question should ever have been raised. Yet authorities are abundant.
Rison v. Farr, 24th Ark., 161; Wisconsin v....
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