Livesley v. Litchfield

• Decision Date: 27 November 1905
• Parties: LIVESLEY v. LITCHFIELD et al.
• Court: Oregon Supreme Court

83 P. 142

47 Or. 248

LIVESLEY v. LITCHFIELD et al.

Supreme Court of Oregon

November 27, 1905

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by Charles S. Livesley against G.P. Litchfield and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The object of this proceeding is to test the constitutionality of the provision in the charter of the city of Salem prohibiting any person from voting at a city election "who has not paid, unless he be exempt therefrom, a road poll tax for the year in which he offers to vote." Sp.Laws Or.1903, 351. The plaintiff, who resided in the city and possessed all the qualifications of a voter therein, except he had not paid a poll tax, tendered his vote at a regular election for city officers, held on December 5, 1904, but a majority of the judges of election refused to receive his ballot or permit him to vote, and he thereupon brought this action against them to recover damages. It resulting adversely to him, he appeals.

S.T Richardson and W. Ellis Richardson, for appellant.

H.J Bigger, for respondents.

BEAN J.

The general rule is that the electorate of a state or any of its governmental subdivisions is created and defined by fundamental law, and that the source of all authority to vote at any popular election is the state Constitution. Any citizen possessing the qualifications of an elector as defined by that instrument, and who is not disqualified by any of its provisions, is entitled to the right of suffrage and it is not within the power of the Legislature to deny, abridge, extend, or change, the qualifications so prescribed. Cooley, Const.Lim. (7th Ed.) 899; 10 Am. & Eng.Enc.Law (2d Ed.) 576. Section 2 of article 2 of the Constitution of this state reads: "In all elections not otherwise provided for by this Constitution every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth of the age of twenty-one years and upwards, who shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law." This provision is by its terms expressly made applicable to all elections not otherwise provided by the Constitution. To empower the Legislature, therefore, to add to or abridge the qualifications of a voter as thus defined, some other provision of the Constitution must be pointed out which confers such authority in express terms, or by necessary implication. The only provisions bearing on the question now under consideration to which our attention has been called are section 2, art. 11, and sections 6 and 7 of article 6, which are as follows:

"Corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes. All laws pased pursuant to this section may be altered, amended, or repealed, but not so as to impair or destroy any vested corporate rights." Const.Or. art. 11, § 2.

"There shall be elected in each county, by the qualified electors thereof, at the time of holding general elections, a county clerk, treasurer, sheriff, coroner, and surveyor, who shall severally hold their offices for the term of two years." Id. art. 6, § 6.

"Such other county, township, precinct, and city officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law." Id. art. 6, § 7.

In support of the judgment of the court below it is contended that the sections just quoted vest in the Legislature plenary power to create corporations for municipal purposes, and to prescribe and define the qualifications of voters at elections to be held therein, and Harris v. Burr, 32 Or. 348, 52 P. 17, 39 L.R.A. 768; Buckner v. Gordon, 81 Ky. 665; McMahon v. Savannah, 66 Ga. 217, 42 Am.Rep. 65; Town of Valverde v. Shattuck, 19 Colo 104, 34 P. 947, 41 Am.St.Rep. 208; Hanna v. Young, 84 Md. 179, 35 A. 674, 34 L.R.A. 55, 57 Am.St.Rep. 396; and State v. Dillon--32 Fla. 545, 14 So. 383, 22 L.R.A. 124, are cited in support of this position. Harris v. Burr, supra, involved the validity of an act of the Legislature conferring upon women the right to vote at school district elections, and the court, after reviewing at length the legislation in respect to the qualifications of voters at school elections prior to, at the time, and since the adoption of the Constitution, concluded that in view of such Legislation and of the fact that the Constitution does not name or mention school officers or school elections, but in express terms relegates to the Legislature the duty of establishing "an uniform and general system of common schools" (Const.Or. art. 8, § 3), it was competent for it to prescribe the qualifications of a voter at a school district meeting. "The power ascribed to the Legislature under the Constitution," says Mr. Justice Wolverton, "to provide for the establishment of a uniform and the general system of common schools, carries with it plenary power to establish the unit of that system, denominated a school district, to determine what officers shall administer its affairs, who and what manner of persons shall be eligible to office, and how and by whom they should be chosen. The elective franchise conferred by section 2, art. 2, does not, nor was it intended to, fix and define the qualification of voters at school meetings, but was designed only to govern in all general and special elections not otherwise provided for by the Constitution, and applies to the election of all officers known to the Constitution, as well as to such as may be provided for thereunder, aside from those provided for under the special power of the Legislature to establish a uniform and general system of common schools." It will thus be seen that this case proceeds wholly on the theory that the Constitution has in express terms authorized and empowered the Legislature to establish a system of common schools, and that it intended and did confer upon that body the power to declare the qualifications of voters for district officers. Such elections are therefore "otherwise provided" by the Constitution and expressly exempted from the operation of section 2, art. 2. But no such provision is to be found in the Constitution as it respects municipal corporations. The Legislature has power to create such corporations by special laws, and "to prescribe by law" the "manner" of the election or appointment of the officers thereof. The power thus conferred is not like that to establish and organize school districts, but more nearly resembles that granted for the organization of counties. A municipal corporation is but a governmental agency or local organization for governmental purposes. Its officers are none the less governmental officers because elected or chosen by the people of a particular locality. It is difficult, if not impossible, to conceive that, when section 7 of article 6, declares that the officers of a city may be elected or appointed as prescribed by law, it did not contemplate that the election, if held, should be by the qualified electorate of the municipality, for, as said by Mr. Justice Christiancy, in People v. Hurlburt, 24 Mich. 44, 9 Am.Rep. 103, "it may be said with certainty that, wherever in the Constitution the election of an officer is provided for, it means an election by the electors of the state, if it be a state office, or of the district or political subdivision for which he is to be elected, unless the Constitution itself, as to any particular...