Southerland v. Norris

• Decision Date: 16 June 1891
• Citation: 22 A. 137,74 Md. 326
• Parties: SOUTHERLAND v. NORRIS, Registration Officer, et al.
• Court: Maryland Court of Appeals

22 A. 137

74 Md. 326

SOUTHERLAND

v. NORRIS, Registration Officer, et al.

Court of Appeals of Maryland.

June 16, 1891.

Appeal from circuit court, Charles county; John B. Brooke, Judge.

Argued before Alvey, C. J., and Bryan, Miller, Briscoe, and McSherry, JJ.

A. Posey and Frederick Stone, for appellant.

L. A. Wilnier, R. H. Edelen, J. H. Mitchell, John P. Poe, and F. M. Cox, for appellees.

MCSHERRY, J. George E. B. Key was born in Charles county, and resided there continuously until the summer or fall of 1889, when, having been employed as a laborer in the navy-yard at Washington, he removed to the District of Columbia, and shortly thereafter took his family to reside with him in that place. He rented a house in Washington, and gave up the one he had occupied in Charles county. He has remained in the employ of the United States government nearly ever since, and during that period he returned to Charles county only to make some brief visits. When he left the county his name appeared upon the registration books of the first election district as a qualified voter; but during the sitting of October,

1890, the officer of registration struck his name from the registry lists, and thereupon the appellant, alleging that he (Southerland) felt himself aggrieved by this action of the officer of registration, took an appeal to the circuit court for Charles county for the purpose of having Key's name restored to the lists. The petition was dismissed, and from that ruling of the court this appeal has been taken.

The qualifications of a voter in this state are prescribed by the first section of article 1 of the constitution of Maryland. Those qualifications are that he shall be a citizen of the United States of the age of 21 years or upwards, and that he shall have been a resident of the state for 1 year, and of the legislative district of Baltimore city, or of the county in which he offers to vote, for 6 months, next preceding the election at which he offers to vote. Before he can exercise his right to vote, he must be duly registered. These qualifications, fixed by the organic law, can neither be enlarged nor curtailed by the general assembly; but there is no provision of the constitution, as there is no principle of constitutional law, that denies to the legislature the power to enact rules of evidence by which the facts establishing the right to vote may be proved. The constitution itself merely designates the qualifications, and then leaves the legislature free to declare by what evidence those qualifications must be shown to exist. It is perfectly competent for the legislature to say what shall and what shall not be admissible evidence to prove a particular fact; and this it has repeatedly done. Its power to change an established rule of evidence is equally undoubted; and the adoption by itself of a new rule, whereby the proof of a fact is rendered more difficult than it had been before, invades, on that account, no vested right whatever. The right to have one's controversies determined by existing rules of evidence is not a vested right. These rules, like others affecting remedies, must at all times be subject to modification and control by the legislature. Gibbs v. Gale, 7 Md. 76; Ogden v. Saunders, 12 Wheat. 349; Webb v. Den, 17 How. 576. But the general assembly has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. Cooley, Const. Lim. 453. These general principles are applicable when the matter to be proved is the voter's qualification, and the forum is the limited one of an officer of registration, no less than when a disputed right is investigated in a judicial tribunal possessing original jurisdiction.

The legal residence of Key is the controverted question in the case at bar, and was the question before the officer of registration. Now, what evidence has the general assembly declared shall alone be competent, both before the officer of registration, and in the courts upon appeal from him, to prove residence in cases where the voter had left the state before the passage of the act of 1890, c. 573? Prior to the adoption of that act there was no rule of evidence prescribed by the legislature on this subject, and in dealing with such questions resort was of necessity had by the courts to general principles and analogies. By section 14 of the Acts of 1890, c. 573, it is provided, in substance, that all persons whose names were upon the registration lists at the date of the passage of this act, but who had previously removed from the state, and had taken up a domicile, dwelling-place, abode, or habitation beyond the limits of Maryland, shall be presumed to have thereby intended to abandon their legal residence in this state, unless within 30 days after the passage of the act they shall go in person before the clerk of the circuit court for the county from which they shall have so removed, or before the clerk of the superior court of Baltimore city, if their removal shall have been from said city, and make and acknowledge before such clerk an affidavit that when they so removed they did not intend to change their legal residence within the state, but that they intend to return to this state, and to take up their actual domicile and habitation therein, on or before 6 months next preceding the Tuesday after the first Monday of November, 1890. In addition to making the oath, these persons were required to return to the state conformably to the intention expressed in the affidavit. A failure to make the oath, and to observe it, was declared to be a conclusive presumption of an abandonment of residence in Maryland. By section 39b it is enacted that, upon appeal from an officer of registration, no declarations, statements, or admissions of a person seeking registration shall be admissible in evidence to prove with what intention he came to, remained in, or departed from any place of abode. Key did not make the affidavit prescribed by ...