McCall v. Automatic Voting Mach. Corporation

• Decision Date: 20 January 1938
• Docket Number: 1 Div. 992.
• Citation: 180 So. 695,236 Ala. 10
• Parties: MCCALL ET AL. v. AUTOMATIC VOTING MACH. CORPORATION ET AL.
• Court: Alabama Supreme Court

180 So. 695

236 Ala. 10

MCCALL ET AL. v. AUTOMATIC VOTING MACH. CORPORATION ET AL.

1 Div. 992.

Supreme Court of Alabama

January 20, 1938

Rehearing Denied April 21, 1938.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Bill in equity by the Automatic Voting Machine Corporation for a declaratory judgment as to the validity of an act providing for the use of voting machines in any county on adoption thereof by the County Commissioners or Board of Revenue, with intervention by Henri Aldridge and others, against D. T McCall and others, as members of the Board of Revenue and Road Commissioners of Mobile County. From a decree favorable to complainant, respondents appeal.

Reversed and rendered.

GARDNER FOSTER, and KNIGHT, JJ., dissenting.

George A. Sossaman, of Mobile, for appellants.

Armbrecht, Twitty & Jackson and Albert J. Tully, all of Mobile, for appellees.

ANDERSON, Chief Justice.

Section 190 of the Constitution of 1901, so far as applicable to the issue involved in this case, says: "The Legislature shall pass laws not inconsistent with this Constitution to regulate and govern elections, [a] and all such laws shall be uniform throughout the State; and shall provide by law for the manner of holding elections and of ascertaining the result of the same, and shall provide general registration laws not inconsistent with the provisions of this article." (Italics supplied.)

It is manifest, therefore, that all laws to be enacted by the Legislature governing or relating to elections, especially to the manner of holding same and ascertaining the result, shall be uniform throughout the state. State ex rel. Austin v. Black, 224 Ala. 200, 139 So. 431, 434.

The Acts of 1935, p. 679, providing for the use of voting machines in any county, city, or town, upon the adoption of same by the county commissioners or board of revenue and to become effective in said subdivisions after the adoption thereof, authorizes a radical departure from our present election laws, thus enabling a single county or a group to break or destroy the constitutionally required uniformity of the election laws as to the manner of holding elections and ascertaining the result "throughout" the State, that is, "All the way from one end to the other of; in or to every part of; during the whole course or period of; in or to every part from one end to the other; everywhere." Webster's New International Dictionary; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83.

Of course, the law may be a general one under the definition given by section 110 of the Constitution as interpreted by many of our decisions, in that every county may come within its influence without additional legislation and it may not have to operate in all of its parts uniformly, but there is a vital distinction between the requirements of section 110 and section 190. Hence the decisions dealing with section 110 are inapt when dealing with section 190. In other words, the law in question may be a general one under section 110, but, in order to conform to section 190, it must govern and have uniform application throughout the State eo instante and not leave it to the will of some governing board to put it into operation in a single or part of the counties.

It is suggested and argued by counsel for appellee that as the framers of the Constitution of 1901, while readopting section 5 of article 8 of the Constitution of 1875, added the words "and shall provide by law for the manner of holding elections and of ascertaining the result of the same," that the uniformity required by the previous sentence did not apply to the added words, that is, to the manner of holding elections and of ascertaining the result of same. This contention was refuted by the court in the opinion of Mr. Justice Thomas in the case of State ex rel. Austin v. Black, supra, wherein it was said: "The added words to section 190, Constitution of 1901, 'shall provide by law for the manner of holding elections and of ascertaining the result of the same,' to the provisions of the former Constitution were in the nature of a constitutional definition or limitation upon the general provisions contained in section 5, article 8 of the Constitution of 1875. And thus were the words 'regulate and govern' defined by the makers of the Constitution as to the matter of substantive requirements for uniformity." Meaning, we repeat, that uniformity was not to be excluded, but was specially applicable to laws for the "manner of holding elections and of ascertaining the result of the same," and did not apply to the calling or fixation of the date of local elections and, we may add, the naming of the place or structure in which the elections were to be held as dealt with in the case of Lovejoy v. Beeson, 121 Ala. 605, 25 So. 599.

In the cases of State ex rel. Porter v. Crook, Judge, &c, 126 Ala. 600, 28 So. 745, and Ex parte Bud Owens, 148 Ala. 402, 42 So. 676, 8 L.R.A.,N.S., 888, 121 Am.St.Rep. 67, the court did not attempt an interpretation of section 5, article 8, of the Constitution of 1875 (section 190 of the Constitution of 1901), only to the extent of holding that it did not apply to the elections for the removal of county sites.

Nor is there anything in the case of Garrett v. Cuninghame, 211 Ala. 430, 100 So. 845,

contrary to the present holding, as a construction of section 190 was not involved and there was only a general reference to same in connection with other sections of the Constitution as to the general purpose of same.

We are, of course, aware that several States have adopted the voting machine as an instrumentality for holding elections and of declaring the result, and the laws providing for same have been upheld, but they were usually laws providing uniformity for elections or else there were no constitutional provisions identical with our section 190. Moreover, with all due respect for other courts, we must and will adhere to the imperative mandate of our own Constitution.

The voting machine in question was inspected by the trial court as well as this court, and whether or not it meets all the requirements of our Constitution if when legally adopted we are not now concerned, except to say that it produces a very different method for holding elections and ascertaining the result of same in Mobile County from the system prevailing in other parts of the State. True, other counties can come under the law, but, until they do, a mere conjecture, the elections cannot be uniform as required by section 190 of the Constitution.

The Douglass Act not operating uniformly throughout the State or not postponing the operation of same until every county in the State adopts the same under the local option feature, the present operation of same is repugnant to section 190 of the Constitution, and we need not pass upon the merits or qualifications of the machine until it is constitutionally adopted. "Sufficient unto the day is the evil thereof."

The act could probably be upheld by the interpolation of a proviso that it should not become effective in any county until adopted by the governing boards of all of the counties, but such an interpolation would do violence to the intention of the present act as it evinces, both by the title and body, the purpose that it shall become effective in the counties when adopted without regard to the other counties.

We are, of course, aware of the elementary principle that, where the validity of a statute is assailed, and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other it would be valid, the court should adopt the construction which would uphold it. When the constitutionality of a statute is questioned, it is the duty of the courts to adopt a construction that will bring it in harmony with the Constitution, if its language will permit, even though the construction which is adopted does not appear to be as natural as the other. State ex rel. Collman v. Pitts, Probate Judge, 160 Ala. 133, 49 So. 441, 686, 135 Am.St.Rep. 79. There are, however, limitations to the application of these principles, and the courts are not at liberty in order to sustain a statute to give it a forced construction or to read into it and interpolate words which do not appear in the language enacted by the Legislature. 6 R.C.L. p. 79, § 77.

There is also an obligatory duty of the courts, which are vested with the power to pass upon the constitutionality of statutes, to not overlook or disregard constitutional demands, which the judges are sworn to support, and therefore, when it is clear that a statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional, and from this duty they cannot shirk without violating their oaths of office. 6 R.C.L. p. 72, § 69.

The Douglass Act being repugnant to section 190 of the Constitution of 1901, the trial court erred in upholding same and in the decree rendered granting the complainant relief, and the decree is reversed and one is here rendered dismissing the bill of complaint.

Reversed and rendered.

THOMAS, BOULDIN, and BROWN, JJ., concur.

GARDNER FOSTER, and KNIGHT, JJ., dissent.

BOULDIN, Justice (concurring).

In my opinion the added provisions incorporated in section 190 by the framers of the Constitution of 1901 define and specify the laws to regulate and govern elections which the Legislature shall enact under the mandate of the same section requiring all such laws to be uniform throughout the state.

Elections in Alabama was the matter of first concern in that convention. This is history.

The qualification of voters was prescribed by self-executing provisions of the Constitution, uniform throughout the state....