Mew v. Charleston & S. R. Co.

• Decision Date: 27 April 1899
• Citation: 32 S.E. 828,55 S.C. 90
• Parties: MEW v. CHARLESTON & S. RY. CO.
• Court: South Carolina Supreme Court

32 S.E. 828

55 S.C. 90

MEW v. CHARLESTON & S. RY. CO.

Supreme Court of South Carolina

April 27, 1899

Appeal from common pleas circuit court of Charleston county; R. C Watts, Judge.

Action by Elliott L. Mew against the Charleston & Savannah Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mordecai & Gadsden, for appellant.

Legare & Holman, for respondent.

JONES J.

The defendant company appeals from a judgment rendered against it in favor of the plaintiff for personal injuries received through the alleged negligence of defendant in the management of its train. A preliminary motion, however, was made to suspend the appeal for the purpose of allowing defendant to move the circuit court for a new trial on the ground that one of the jurors who sat in the case was not a qualified elector, under the constitution, for want of registration and therefore not a legal juror. The affidavits submitted in support of the motion are quite sufficient to make a prima facie showing that the juror Gorse was not at the time of the trial registered in the county of Charleston as an elector and that such fact was not actually known to defendant or its counsel at the trial. An examination of the books of registration after the trial disclosed the fact that said Gorse was not registered. Will this showing justify us in suspending the appeal for the purpose named? We think not for the reasons now stated:

Article 5, §§ 22, of the constitution, provides, "*** Each juror must be a qualified elector under the provisions of this constitution, between the ages of twenty-one and sixty-five years, and of good moral character." By article 2, §§ 3, 4, registration is made one of the qualifications of an elector. This is controverted by the other side, who contend that the constitution makes a distinction between "qualified electors" and "registered qualified electors." We cannot agree with this latter contention. Article 2, §§ 3, provides: "Every male citizen of this state, and of the United States, twenty-one years of age and upwards, not laboring under the disabilities named in this constitution, and possessing the qualifications required by it, shall be an elector." Then section 4 proceeds to state the qualifications for suffrage: (a) Residence; (b) registration; then (c) the qualifications for registration of those who apply therefor up to January 1, 1898, making those so registered "qualified electors" for life, unless disqualified by other provisions of the constitution; then (d) the qualifications for registration of those who apply therefor after January 1, 1898; (e) directing what managers of election shall require of every elector offering to vote. Then follows subdivision of, as follows: "The general assembly shall provide for issuing to each duly registered elector a certificate of registration, and shall provide for the renewal of such certificate when lost, mutilated or destroyed if the appellant is still a qualified elector under the provisions of this constitution, or if he has been registered as provided in subsection (c)." The argument, as we understand it, is that the above section 4 does not provide the qualifications of an elector, but the qualifications for suffrage, or the act of voting. But suffrage is the right to vote, not the act of voting; and it seems untenable to argue that "qualifications for suffrage" does not also mean qualifications for elector, especially when the constitution, immediately preceding, defines an elector (among other things) as one "possessing the qualifications required by it" (the constitution). Where else in the constitution must we look to ascertain the qualifications of an elector? We find in section 6 of this article who are disqualified for crime, etc., who come within the class of those "laboring under the disabilities named in the constitution"; but where shall we ascertain the "qualifications required," unless it be in this section? The qualifications of an elector, under the constitution, are citizenship, age, residence, and registration, subject to disqualification for certain crimes unpardoned, insanity, pauperism, and imprisonment, and subject to certain regulations in reference to the certificate of registration, and in reference to proof of payment of taxes when the elector offers to vote. If any distinction among qualifications is permissible, registration must have been deemed pre-eminent. The matter of reading any section of the constitution, or understanding and explaining it when read, previous to January 1, 1898, and of reading and writing any section of the Constitution, or the ownership of property assessed at $300 by those applying for registration after January 1, 1898, are qualifications for registration, not qualifications for suffrage, except as the right of suffrage depends upon the qualifications of registration. The term "qualified elector" is frequently used in the constitution, and in every instance except one it means "registered elector." Take the article under discussion. In section 2, "every qualified elector shall be eligible to any office," etc.; section 4, subsec. c, where it is provided that those who are registered previous to January 1, 1898, "remain during life qualified electors unless disqualified," etc.; in section 4, subsec. f, where a duly-registered elector, still remaining a "qualified elector" (i. e. not disqualified under the constitution), may have renewal of registration certificate in certain cases. The excepted case referred to above is in section 8 of this article, where it is ordained: "The general assembly shall provide by law for the registration of all qualified electors," etc., from which it is argued that this implies that there may be qualified electors who are not registered, but for whom registration is to be provided. We grant that the language used is not strictly apt or accurate, but, construed in the light of the constitution as a whole, the meaning is manifest, viz. that the general assembly shall provide by law for the registration of all persons qualified for registration as electors. This is made very clear by reference to subsection c of section 4 of this article, where it is provided, "up to January 1st, 1898, all male persons of voting age applying for registration who can read any section in this constitution submitted to them by the registration officer, or understand and explain it when read to them by the registration officer shall be entitled to register and become electors." We will not prolong this opinion by reference to the numerous places in the constitution where the words "qualified electors" are used in order to show that the words mean registered electors, but we note one other instance. In article 16, § 1, providing for amendments to the constitution: "*** And the same shall be submitted to the qualified electors of the state at the next general election thereafter for representatives; and if a majority of the electors qualified to vote for members of the general assembly, voting thereon shall vote in favor," etc. Here we have a definition of "qualified elector" as an elector qualified to vote for members of the general assembly, and it could not be contended that one is qualified to vote without registration.

But for the earnestness with which the contrary view was pressed, we would not have deemed it necessary to say more than that we agree with counsel for the moving party that registration is an essential qualification of an elector. It follows that one who has not been registered as an elector in the county when the court sits is not qualified to serve as a junior in said court. Still it does not follow that movant must be allowed to suspend this appeal, to move for a new trial on circuit. Previous to the constitution of 1895 the rule had long prevailed in this state that what was cause for challenge to a juror could not, after verdict, be made a ground for new trial. State v. Quarrel, 2 Bay, 150; State v O'Driscoll, Id. 153; State v. Fisher, 2 Nott & McC. 261; State v. Billis, 2 McCord, 12; Josey v. Railroad Co., 12 Rich. 134. In the case of Garrett v. Weinberg, 54 S.C. 127, 31 S.E. 341, this court held, under the constitution of 1895, that a new trial should be granted if a juror disqualified by conviction for hog stealing sat on the case, if neither the party nor his counsel knew of the disqualification until after verdict. This case was grounded on the finding of fact by the circuit judge "that none of the parties to this action, or their respective counsel, had knowledge of the conviction of Ardis, during the trial of the case." Such fact this court was bound to act upon, and could not impute to any one knowledge, actual or constructive, in conflict therewith. But in the later case of State v. Robertson, 54 S.C. 147, 31 S.E. 868, the rule stated in Garrett v. Weinberg, supra, was qualified in this language by the chief justice, who also wrote the opinion in Garrett v. Weinberg: "For while it is true that in the cases of Kennedy v. Williams, 2 Nott & McC. 79, and Garrett v. Weinberg, supra, some stress is laid, and, in a proper case, properly laid, on the fact that the disqualification of the juror was not known to the party or his counsel until after the trial, yet we think this should be qualified by the proviso that such ignorance is not due to the want of diligence; for, where the disqualification relied on might have been discovered by the exercise of ordinary diligence, it affords no excuse for failing to make the objection in due season, for, as was said in State v. Fisher, supra, a party 'should not be permitted to take advantage of his own negligence.' In this case, as we have seen, appellant failed to make use of the means afforded by the law to enable him to...