Frost v. State

• Decision Date: 19 December 1907
• Citation: 45 So. 203,153 Ala. 654
• Parties: FROST v. STATE EX REL. CLEMENTS.
• Court: Alabama Supreme Court

45 So. 203

153 Ala. 654

FROST v. STATE EX REL. CLEMENTS.

Supreme Court of Alabama

December 19, 1907

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Quo warranto by the state, on the relation of M. K. Clements against C. E. Frost. From a judgment for relator, respondent appeals. Affirmed.

W. R Walker and H. C. Thatch, for appellant.

Callahan & Harris, Brown & Kyle, and M. K. Clements, for appellee.

DENSON J.

This is an information in the nature of a quo warranto, filed by the state of Alabama, on the relation of M. K. Clements, against C. E. Frost; and by it the relator seeks to have the respondent ousted from holding the office of mayor of the town of Athens, on the ground that he is a usurper of the office. The respondent in his answer justified on the ground that he was duly elected to said office at an election held in said town on the 1st day of April, 1907, for the purpose of electing a mayor and councilmen, and that he received the certificate of his election from the proper official and was duly inducted into the office. A special replication (replication 4 as amended), in this language, was filed to the answer: "That at the time of said election, and at the time said certificate was issued to the said Frost by the sheriff of Limestone county, Ala., to the effect that said Frost had been duly elected to the office of mayor of Athens said C. E. Frost was not a qualified elector of the town of Athens, and was not on the day of said election, nor on the date of the issuance of said certificate, such qualified elector, in this: That said Frost was born on October 2 1861, and was due a poll tax for the year 1906, and had failed to pay the same on or before the 1st day of February, 1907." Demurrers to this replication were overruled, issue was joined on it, and the bill of exceptions recites that "special replication No. 4, as amended, was proven by plaintiffs and not disputed by respondent, but admitted by the respondent as to the facts therein." The court charged the jury, at the written request of the state, as follows: "If you believe the evidence, you will find a verdict in favor of the state on the relation of M. K. Clements and against the respondent, C. E. Frost, on the issues presented by replication 4 as amended." Verdict was returned for the state, and judgment rendered in favor of the state, ousting Frost; but no judgment was rendered in favor of Clements individually. From the judgment the respondent prosecutes this appeal.

Courts take judicial knowledge of the charters of municipal corporations. Therefore we judicially know that the charter of the town of Athens provides that a person, to be eligible to the office of mayor, must be a qualified voter under the laws of the state at the time of his election or appointment. Acts 1900-01, pp. 1037-1058. Section 178 (article 8) of the Constitution of 1901, in respect to poll tax, provides that, "to entitle a person to vote at any election by the people * * * he shall have paid, on or before the first day of February next preceding the date of the election at which he offers to vote, all poll taxes due from him for the year nineteen hundred and one, and for each subsequent year." Section 194 (article 8) of that instrument is in this language: "The poll tax mentioned in this article shall be one dollar and fifty cents upon each male inhabitant of the state, over the age of twenty-one years, and under the age of forty-five years, who would not now be exempt by law; but the Legislature is authorized to increase the maximum age fixed in this section to not more than sixty years. Such poll tax shall become due and payable on the first day of October in each year, and become delinquent on the first day of the next succeeding February, but no legal process nor any fee or commission shall be allowed for the collection thereof. The tax collector shall make returns of the poll tax collections separate from other collections." The Legislature not having made any change in the age limit, it remains as fixed by the Constitution. Section 259 of the Constitution provides that poll taxes shall be applied to the support of the public schools in the county in which they are collected. The Constitution of 1875 (article 11, § 1) provided that the General Assembly might levy a poll tax, not to exceed $1.50 on each poll, to be applied exclusively in aid of the public schools of the county paying the same. In respect to the poll tax, the difference between the provisions of the two constitutions is that, whereas, the Constitution of 1901 is self-operative, making the levy in and by its own language, without legislative action (Francis v. Peevey, 132 Ala. 58, 31 So. 372), and, though leaving the payment of the tax a pure matter of volition on the part of the poll, denies to him the right to vote without such payment--in other words, says to the poll, "Pay your tax and you may vote, but unless you pay it you cannot vote"--on the other hand, the Constitution of 1875 granted to the General Assembly the power to levy, and the General Assembly accordingly levied, a poll tax, making its payment compulsory, but leaving no privilege involved in the payment or default of the tax. Code 1896, § 3919, provides that "all taxes, unless otherwise directed, shall become due and payable on the first day of October in each year, and shall become delinquent before the first day of January succeeding." The present Constitution makes no change in the time of payment. Its provisions and those of the statute are alike in this respect. It does, however, make a change in the date of delinquency--postponing that date to the 1st day of February of the succeeding year. Whatever may have been the purpose which inspired the framers of the Constitution to embody in that instrument sections 178 and 194, it is not a subject of controversy that all men (not exempt) over 21 years and under 45 years of age must, if they would qualify as voters, conform to the requirements of those two sections.

It is insisted by the appellant, and conceded by the appellee, that a person reaches a designated age on the day preceding the anniversary of his birth. 1 Am. & Eng. Ency. Law (2d. Ed.) 827; 15 Cyc. 290, note 1; 1 Chitty on Cont. (11th Ed.) 193 note "h"; 1 Redf. on Wills, *pp. 19, 20; Paine on Elections, pp. 731, 732; 1 Blk. Com. pp. 460, 463; 3 Page on Cont. § 851; 1 Salkeld, 44; 2 Salkeld, 625; Lenhart's Case, 33 Tex. Cr. R. 504, 27 S.W. 260; Ross v. Morrow, 85 Tex. 172, 19 S.W. 1090, 16 L. R. A. 542; Montoya de Antonio v. Miller...