Thomas W. Martin v. C. P. Fullam
| Decision Date | 08 April 1916 |
| Citation | 97 A. 442,90 Vt. 163 |
| Parties | THOMAS W. MARTIN v. C. P. FULLAM ET AL |
| Court | Vermont Supreme Court |
Special Term at Brattleboro, February, 1916.
PETITION for a writ of mandamus, brought to the Supreme Court for the County of Orange at a special term thereof held on February 28, 1916, and then heard on the pleadings, and an agreed statement of facts.
Judgment that the prayer of the petition is granted, and that a mandamus issue directing the defendants, as members of the board of civil authority of the town of Brookfield forthwith to insert the relator's name on the said copy of the check list as demanded by him, that he may vote on the said two questions under referendum, at the time of the annual meeting in that town, to be held March 7, 1916 without costs.
Hale K. Darling for the relator.
John N. Harvey for the defendants.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.
Each, the Primary Act and the Prohibitory Act, involves a question of general public policy, the former as a regulation of elections, and the latter as a regulation, under the police power, for the public good. From a legal standpoint, the people of the whole state are equally interested therein. Each enactment has become a law to take effect at a future time, irrespective of what the result of the vote on the referendum may be, but the time of taking effect is contingent upon the result of such vote. The purpose of each Act is of such importance that the Legislature, in its wisdom, deemed it advisable in this manner to ascertain the real public opinion concerning it, and upon that opinion, as it may be expressed in the way provided for, was made to depend which of the two dates named, the Act should take effect. Such, in short, being the nature and importance of the enactments, was it the intention of the Legislature to get such expression of opinion by vote of all the freemen of the State, or was it the intention to get such expression of opinion from those only who by law are entitled to vote in town meetings upon matters relating exclusively to the town or city in which the votes are given? If it was the latter and not the former, then it was the intention of the Legislature to get an expression of opinion concerning these two Acts of state-wide interest and importance, from a portion only of the freemen of the State, excluding from the privilege of taking part therein, the rest of the freemen because, and only because, they failed to comply with a law affecting, so far as the individual freeman is concerned, the interests of the particular town or city in which he resides. While it may not be a constitutional privilege to vote upon the two questions submitted to the people, it would not be going far astray to say that when such an expression of opinion by popular vote is provided for by the Legislature, it becomes a public privilege of the freemen of the State to exercise the right of voting on the question submitted. If it may properly be classed as such a privilege, then to deny a freeman the same right of voting as is given to other freemen of the State for some reason not recognized by the Constitution, raises the grave question whether his constitutional rights are not infringed. Section 34, Ch. II of the State Constitution, provides that every man of the full age of twenty-one years, and having the other qualifications specified therein, and who will take the oath or affirmation there following, "shall be entitled to all the privileges of a freeman of this state." While no constitutional question was presented in argument, and we do not decide the one suggested, still the privileges there guaranteed are not to be lost sight of, in determining the question before us.
Each of the Acts of 1915 provides that the ballot clerks, board of civil authority, and the town and the city clerks, shall perform the same duties in respect of the ballots to be used thereunder as are imposed upon those officials by chapters 11 and 12 of the Public Statutes, except as otherwise provided in the Act, "and all regulations provided by law for conducting general elections shall be applicable to the votes provided for in this act." The two chapters named have reference (giving the titles of the chapters) (11) to Ballots, and (12) to Warning and Conducting Elections. In considering the meaning of the provision making applicable to the votes all regulations provided by law for conducting general elections, light is had by an examination of other statutes by which questions of general interest throughout the state have been submitted to a popular vote.
The term "general election" is defined by section 5 of the Public Statutes to mean "any election of state and county officers, representatives to Congress or electors." (By No. 1, Sec. 1, Laws of 1915, it is made to include United States Senators.) And throughout the Public Statutes (revision of 1906) the term "general election" is uniformly used to designate what before had commonly been known as "freemen's meeting." This accounts for the change in language in providing for the referendum in each of the Acts of 1915 from what it was in previous Acts under which questions were submitted to the people. Thus in the act of 1852, prohibiting traffic in intoxicating liquor, section 28 provided for the holding of meetings in the several towns, "at which the freemen of this state may express their judgment and choice in regard to this act," etc. See State v. Parker, 26 Vt. 357. By the Act of 1902, to regulate the traffic in intoxicating liquor, section 101, the officers of every town or city were required to call a special meeting, "providing for an opportunity of the freemen of this State to express their judgment and choice in regard to this act," etc.; and under section 103, "All regulations provided by law for conducting freemen's meetings shall be applicable to the votes provided...
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