In re Appeal of Brown

• Decision Date: 15 October 1946
• Citation: 49 A.2d 618,43 Del. 608
• Court: Supreme Court of Delaware
• Parties: IN THE MATTER OF THE APPEAL OF THOMAS MALCOLM BROWN, FROM THE DECISION OF THE REGISTRATION OFFICERS OF THE THIRD ELECTION DISTRICT, IN THE SIXTH REPRESENTATIVE DISTRICT OF NEW CASTLE COUNTY

49 A.2d 618

43 Del. 608

IN THE MATTER OF THE APPEAL OF THOMAS MALCOLM BROWN, FROM THE DECISION OF THE REGISTRATION OFFICERS OF THE THIRD ELECTION DISTRICT, IN THE SIXTH REPRESENTATIVE DISTRICT OF NEW CASTLE COUNTY

Supreme Court of Delaware, New Castle

October 15, 1946

Proceeding in the matter of the appeal of Thomas Malcolm Brown from the decision of the registration officers of the Third Election District in the Sixth Representative District of New Castle County refusing to register appellant as a qualified voter in such election district.

Registration of appellant ordered.

This is an appeal by Thomas Malcolm Brown from the decision of the registration officers of the Third Election District in the Sixth Representative District in New Castle County in refusing to register him on July 10, 1946," as a qualified voter in said Election District.

It was established by the evidence that on that day the appellant made personal application to the registration officers of the Election District, then sitting for the purpose of ascertaining and registering the persons whose names did not already appear as qualified voters on the registration books of the Election District, and who were qualified to enjoy the right of an elector in the Election District at the general election to be held on November 5, 1946. That his name did not, on that day, already appear as a qualified voter on the said registration books, that he then possessed all the qualifications specified in the Constitution entitling him to be registered as a voter in the Election District and was not subject to any of the disqualifications contained in the Constitution denying him the right to be so registered, and that he was refused registration because he had failed to comply with the provisions of an Act of the General Assembly, approved April 13, 1945, being Chapter 146 Volume 45 of our laws. In Section 1 of this Chapter it was provided that:

'From and after the passage and approval of this Act, any person coming into this State from any other State, the District of Columbia, or any Territory of the United States shall not be entitled to vote at a General Election of this State until one year after his or her declaration of intent to become a citizen and resident of this State shall be evidenced by such entry in a record book, to be known as 'Declaration of Intent Book" .

Sections 2 and 3 of the Act provide for the keeping by the respective Boards of Registration of the 'Declaration of Intent Book', and the making of the entries therein, including the 'names of all such persons defined in Section 1' and 'his or her declaration of intent to become a citizen and Resident of this State', and that 'a copy of such record entry duly certified and signed by the Board of Registration' shall 'be evidence of his or her intention to become a citizen and resident of Delaware.'

In Section 4 it is provided that:

'Before any such person as defined in Section 1 hereof shall be entitled to registration as a registered voter for any General Election of this State, he or she so desiring to register shall present to the registration officers a certified copy of the record entries of his or her intent to become a citizen and resident of this State as the same appears in the 'Declaration of Intent Book'; if such record shows that the declaration of intent to become a citizen or resident of this State was made one year or more prior to the date of the next General Election of the State, such applicant shall be entitled to be registered as a registered voter for said Election, provided he or she otherwise qualifies as such under the provisions of the Constitution of the State of Delaware and any general law passed pursuant thereto.'

The appellant admits he came into this State from another State, on or about September 19, 1945, and that he did not comply with the provision of the Act.

It was claimed by the attorney for the appellant and the amici curiae that the Act is unconstitutional. The Attorney General, on the other hand, contended that the Act is constitutional. He also questioned the jurisdiction of a Resident Associate Judge, when sitting to hear appeals from the decisions of the registration officers, to pass upon the constitutionality of a statute. His contention was that a Resident Associate Judge, when so sitting, was not sitting as a Court, but as a registration officer.

Under the Constitution, some citizens of this State are denied the right to vote at the general election because of certain disqualifications therein specified, but not here applicable. As to others, it is provided by Section 2 of Article V of the Constitution, that:

'Every * * * citizen of this State of the age of twenty-one years who shall have been a resident thereof one year next preceding an election, and for the last three months a resident of the county, and for the last thirty days a resident of the hundred or election district in which he may offer to vote, and in which he shall have been duly registered as hereinafter provided for, shall be entitled to vote at such election in the hundred or election district of which he shall at the time be a resident, and in which he shall be registered, * * *'

The Constitution of 1897, when adopted, provided in Section 4 of Article V that 'The General Assembly shall provide by law for a uniform biennial registration of the names of all the voters in this State who possess the qualifications prescribed in this Article.' For the purpose of enabling the General Assembly to pass legislation which would not require a general registration as frequently as biennially the above quoted language was stricken out and other language was substituted in lieu thereof, so that the first paragraph of the Section, as it is today, reads as follows:

'The General Assembly shall enact uniform laws for the registration of voters in this State entitled to vote under this Article, which registration shall be conclusive evidence to the election officers of the right of every person so registered to vote at any General Election while his or her name shall remain on the list of registered voters, and who is not at the time disqualified under the provisions of Section 3 of this Article; and no person shall vote at such General Election whose name does not at that time appear in said list of registered voters.'

At all times since its adoption in 1897 it was provided in the Constitution that there shall be registration days in a period commencing 'not more than one hundred and twenty days, nor less than sixty days before' and ending 'not more than twenty days, nor less than ten days before' the General Election.

The language of the section respecting appeals from the decision of the registration officers is the same today as at the time of the adoption of the Constitution. The language is as follows:

'From the decision of the registration officers granting or refusing registration, or striking or refusing to strike a name or names from the registration list, any person interested, or any registration officer, may appeal to the resident Associate Judge of the County, or in case of his disability or absence from the County, to any Judge entitled to sit in the Supreme Court, whose determination shall be final; and he shall have power to order any name improperly omitted from the said registry to be placed thereon, and any name improperly appearing on the said registry to be stricken therefrom, and any name appearing on the said registry, in any manner incorrect, to be corrected, and to make and enforce all necessary orders in the premises for the correction of the said registry.'

P. Warren Green for appellant.

Daniel F. Wolcott and Thomas Cooch, amici curiae.

Clair J. Killoran, Attorney-General, for the State.

Case heard before SPEAKMAN, J., sitting as Resident Associate Judge of New Castle County.

OPINION

SPEAKMAN, Resident Judge.

Pursuant to the mandate contained in the Constitution, the General Assembly passed an Act, which was approved May 27, 1898, being Chapter 36 of Volume 21 of our Laws, in which it was provided that it should be the duty of the resident Associate Judges of the respective Counties to sit at certain designated times and places for the purpose of hearing appeals from the decisions of the registration officers. By the Act, and by subsequent Acts, rules of procedure, to a limited extent were prescribed concerning appeals, applications and motions; but in no event to the extent of limiting or hampering the sitting Judges in the discharge of their constitutional duties. Beyond this my attention has not been directed to any legislative action by which any attempt has ever been made to restrict or limit the duties imposed upon the sitting Judges by the Constitution, unless, as claimed, the Act of 1945, Chap. 146, Vol. 45, has that effect.

Before any consideration can properly be given to the contention that the Act is unconstitutional, it must first be determined whether the authority to do so is given by the Constitution to a resident Associate Judge when sitting to hear appeals from the decisions of the registration officers. This, I believe, depends on whether the power given by the Constitution was conferred upon him as a Judge, as distinguished from a Court. In United States v. Clark, Fed. Cas. No. 14,804, 1 Gall 497, 25 F. Cas. 441, Judge Story, sitting in the First Circuit Court, said:

"A court is not a judge, nor a judge a court. A judge is a public officer, who, by virtue of his office, is clothed with judicial authorities. A court is defined to be a place in which justice is judicially administered. * * * It is the exercise of judicial power, by the proper officer or officers, at a time and place appointed by law. ...