Roberts v. Cannon, 20 N.C. 256, 3 Dev. & Bat. 256 (1839)

June 1839 · Supreme Court of North Carolina

20 N.C. 256, 3 Dev. & Bat. 256

THOMAS V. ROBERTS qui tam. vs. HENRY J. CANNON.

Under the 8th section of the Constitution, a residence within the State, for twelve months immediately preceding the day of an election — no matter in what county or counties of the State — is sufficient to entitle one, otherwise, qualified, to vote for members of the House of Commons for the county inpvhich he resides at the day of election.

By a residence in the county, the constitution intends a domicil in that county. This requisition is not satisfied by a visit to the county, whether for a longer or a shorter time, it the stay there be for a temporary purpose, and with the design of leaving the county when that purpose is accomplished. It must be a fixed abode constituting it the place of Ms home.

This was an action of Debt, brought by the plaintiff, to recover of the defendant the penalty prescribed by law, (see 1 Rev. Stat. ch. 52, sec. 20) for having voted at an election for members of the House of Commons, without being entitled to vote at such election. It was commenced by a warrant before a single Justice and carried by successive appeals to the Superior Court, in which it was tried on the last Fall circuit, at Northampton, before his Honor Judge Saunders. Upon the trial the facts were agreed and were as follows:

At the election in the county of Northampton, in August 1838, the defendant voted for members to represent that "county in the House of Commons of the General Assembly. He was a native citizen of the State, and an inhabitant of that county; had attained the full age of twenty one years; had repeatedly paid public taxes, and had resided in the State all his life; but he had not been an inhabitant of the county of Northampton, twelve months immediately preceding the day of election, having removed into that county, in the month of November 1837, from the county of Wake, where he had always theretofore resided. His Honor, upon these facts, was of opinion that the plaintiff was entitled to recover, and gave judgment accordingly: whereupon the defendant appealed.

June 1839

Battle for the defendant:

This case calls for a judicial construction of the 8th section of our State Constitution, in relation to the residence required to qualify persons to vote for members of the House of Commons. That section prescribes “That all freemen &c.” and the question is whether the voter must have been an inhabitant of the county in which he offers to vote, twelve months immediately preceding the day of election, or whether a residence in some other county or counties of the State for that time will authorise his voting in the county in which he resides on the day of the election. For the defendant, it is contended that the latter is the proper construction; 1st, from the obvious meaning of the words of that section, considered without reference to the other parts of the constitution; 2ndly, from the interpretation which the language of that section necessarily requires from comparing it with other sections in the same instrument.

1. It is a rule of law no less than of reason that in the interpretation of laws, the words are to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use; and that every part, may, if possible, stand, utres ma-gis valeat quam f.ereat. 1 Black, Com. 59, 89. The section under consideration, would present no difficulty in its construction, but for its closing words “for the county in which he resides.” But for those words it would be clear that the residence required in a voter, was a residence for twelve, months in the county in which the votéis offered. The word “any,” as applied to the county and to the election, is used to denote that, the qualifications prescribed in the section, are ap^. plicable indifferently to each and every county in the State, and to the elections- to be held therein. Without the closing ... ® words of this section, as above remarked, the sentence would. £,e complete, and the meaning clear and unequivocal. Were those words added without any definite purpose, and to be regardedasmere expletives? or were they designed to vary the meaning of the other parts of the section, and in so doing to have an important operation themselves? We contend, that so far from having no signification, they were designed to have, and do have, a most important bearing upon other parts of the section, and that they were designed to extend, and do extend, to many of the free citizens of the State, the privilege of voting for members of the House of Commons, who would be otherwise excluded. The preceding words of the section prescribe for voters the qualifications of being freemen — of being of the legal age of discretion — of being inhabitants of some county of the State for twelve months immediately preceding the day of election — and of having paid public taxes; but it is left to these words “for the county in which he resides,” to specify, and particularly point out the county in which the vote is to be given. The words will bear this construction, and unless they receive it, they have no meaning at all. But perhaps it may bo said, that if a part of the twelve months residence may be in some county other than that in which the vote is offered, it is equivalent to a residence in the State at large, and in that view it would have been more proper to have used the word State in connection with the residence, and not to have used the word county except in connection with the voting. To this it may be replied, that such mode of expression would undoubtedly have answered the purpose of the framers of the instrument, but it is believed that the present wording of the section expresses the same meaning; and if any reason is sought why the one mode was adopted instead of the other, it may be found in the fact that it more nearly resembles the form and structure of the preceding section, which prescribes the qualifications of the voters for members of the Senate.

2. That the construction of the section under consideration for which we contend, is the. proper one, will more manifestly appear from comparing it with other sections of the Constitution, and particularly with the 7th section. That section prescribes the qualification for the Senatorial voters, and is in these words: “ That all freemen, &c.” The construction of these words has long been settled, and the practice under them uniform and consistent. The residence for the time mentioned immediately preceding the election, the possession of the freehold also for the time prescribed, and the voting, must all be in the same county. It is true that it is not stated in express terms where the voting must be, but the implication is so strong that it must be in the same county with the residence and the ownership of the freehold, that not a doubt has ever been entertained upon it. For the plaintiff it is contended that the 8th section must bear the same construction in regard to the residence. If so, why is there a variance in the phraseology of that section, a variance too remarkable not to have intended some difference of meaning? The two sections in structure are almost precisely alike. They commence with the same words, and so continue, with the difference only of using the words “ any one” instead of “ any,” down to the words prescribing a difference of property qualification. Then in the 7th, the possession of a freehold within the same county o^ fifty acres of land for six months next before and at the day of election, is prescribed as a qualification for voting for members of the Senate, while the payment of public taxes only is required for voters for members oí the House of Commons. If the 8th section had stopped here, the construction as to the residence of the voters must,fit is apprehended, have been the same with the 7th, although it cannot escape notice that the payment of public taxes in the one case is not, like the possession of a freehold in the other, to be in the same county with the residence: and it has always been held, that if public taxes have at any time been paid any where in the State, it is sufficient. But the 8th section does not stop with declaring that persons possessed of the qualifications before prescribed, shall vote for members of the House of Commons, but goes on to specify the county in which such qualified voter may give his vote, to wit, “ the county in which he resides.” Nbw, it is perfectly manifest that the framers of the constitution did not deem these last words necessary, if they intended that the twelve months residence and the voting should be in the same county, because they omitted to use them in the 7th section, where such was evidently their intention.

If we compare the language of the 8th section with that of thé 5th, 6th and 9th sections of the Constitution, we shall derive additional support for our argument. In the 5th and 6th sections, the residence is referred to the county in which the member is elected to serve in the Senate or House of Commons by words so plain that it is impossible to mistake them: and in the 9th section, the residence in the town in which the vote is to be given is so clearly pointed out, that supposing the 8th section was intended-to mean what is contended for on the other side, it would seem as if the framers" of the Constitution were studious to afford a practical illustration of the contrast between clearness and obscurity in the language of the instrument which they were preparing.

In answer to the argument for the construction of the 8th section of the Constitution, contended for on the part of the defendant, it may perhaps be urged that it will admit voters who may be entirely unacquainted with the local interests of the county in which they propose to vote, as well as with the characters of the persons who are candidates for election. Admitting to some extent the force of this objection, we yet think that there existed strong reasons which induced our ancestors to overlook it for the purpose of accomplishing the object of extending the elective franchise for the popula1-' branch of the Legislature, as widely as practicable, consistent with the security and welfare of the State. The dispensing with a freehold qualification at all, was an innovation upon the law and usages of the colonial government, but such innovation was deemed essential in the establishment oí a more democratical form of government; and the principle being once admitted, it was looked upon as indispensable, that in at least one of the branches of the Legislature, all classes of the community should be represented, and that every man should be entitled to a vote who should possess a sufficient degree of independence and legal discretion, and who should have partid-pated in the public burthens and have had a residence in the State long enough to learn its true policy, and to feel an interest in its welfare. This object could be effected only by prescribing the residence for the necessary time to be in some county or counties of the State, and allowing the vote to be given in the county where the voter might be resident on the day of the election. There were, at the period of the formation of the Constitution, as there are now, many useful citizens, such as mechanics of different kinds, overseers and the like, whose occupations required a constant change of residence, and who, in the course of their respective employments, might never remain in the same county two years in succession. Such persons, according to the construction contended for by the plaintiff, might, before the change in our Constitution, while elections were annual, never have enjoyed the elective franchise; and every person whatever would necessarily have been deprived of a vote for oneyear, whenever he thought proper to remove from one county to another. For all such cases, it is believed that the Constitution intended to provide; and it does so provide in the section under consideration, if the construction contended for on behalf of the defendant be correct.

B. F, Moore, for the plaintiff.

The argument of the defendant’s counsel proposes to reJ' ject the words “ any county,” and to read the section without them; thus “ All freemen of the age of twenty-one years who have been inhabitants within this State twelve months” &c. This is inadmissible in an instrument of this kind.

1. Because we must suppose that the language was carefully selected.

2. B'ecause, in other parts of the constitution, where a general residence in the State is required to bestow privilege, the language is different; as in the 40th section which prescribes rules for naturalization, “ That every Foreigner who comes to settle in this State” &c.

3. The language of the 8th section which qualifies voters for the Commons, is, so far as it requires residence, almost precisely a copy of the 7th, which qualifies voters for the Senate. The seventh section is “ That all freemen of the ¡¡tge of twenty-one years, who shall have been inhabitants of any one county within this State” &c. The uniform and settled construction of this section is, that the words require a twelve months residence in the county of voting. If this section shall be read as it is proposed to read the 8th, there is no language left requiring the freeholder to vote in the county of his freehold.

4. The 9th section qualifies voters for towns, and express' ly requires a residence of twelve months in the town, or a freehold therein. No good reason can be offered why such residence is required in borough voters, and not in county voters. The representative of each is a member of the House of Commons.

5. Prior to the Revolution, all voters were freeholders. The constitution, in extending the franchise, intended to make two classes of voters; voters qualified by freehold and residence, and voters qualified by residence alone. The only difference it intended in the voter for the Senate, and the voter for the House of Commons, was a dispensation of the freehold to the latter.

6. Residence is essential to a prudent exercise of the franchise, both to understand the local policy and the qualifications of the candidates.

7. The fact of residence has always been, and always must be a difficult question, and under the most explicit definition, will open the door for the introduction of fraudulent votes — therefore it was wise in the constitution to put the question at rest by defining the length of time which would constitute the residence required.

’8. If the words “ any county” be retained, no sensible construction can be placed on the section, without reqiring a twelve months residence in the county of voting. The requisition of such a residence will protect the settled population against persons'introduced a short time before an election, for the purpose of affecting the result.

9. It is dangerous to strike words of plain import from the fundamental charter of our liberties, and can never be done with safety, except to give others more material their ed effect.

Gaston, Judge,

after stating the facts of the case as above, proceeded as follows: The question of law arising upon these facts, is, whether the defendant had the right to vote at the said election.

The 8th section of the constitution, upon which the controversy arises, is in these words: “All freemen of the age of twenty-one years, who have been inhabitants of any county within this State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the House of Commons for the county in which he resides.” The plaintiff insists that this section confines the right of voting, to those who have been inhabitants of the particular county in which they reside at the day of election, for twelve months immediately preceding that day; while the defendant contends that a residence within the State for twelve months preceding the day of election — no matter in what county or counties of the State — is sufficient to entitle one, otherwise qualified, to vote for members of the House of Commons for the county in which he resides at the day of election. There is a very striking grammatical inaccuracy in the language of this section, for which it is difficult to account — unless it be that the section does not retain its original form, but in passing through the Congress, received some amendments which were so inserted as not to fit in exactly with its general structure. “All freemen” &c. are entitled to vote for members of the county “ in which he resides.” It is evident also, that whichever of the constructions contended for shall be adopted, the intent of the framers of the Constitution will be found not to have been expressed in the mostprecise terms. These considerations but impress upon us more deeply the propriety of observing the leading rule in the exposition of laws, of assigning to words their popular signification without indulging in critical refinements.

By the plaintiff, it is assumed that the obvious sense of the words “ any county” is some one county. We do not think so; and no better evidence can be asked to establish the reverse of this proposition -than by recurring to other parts of the same instrument, where “ any” is annexed to nouns in the singular number. By the 16th section of the Constitution, each member of the Council of State is author-ised to have his dissent recorded to “ any” part of the proceedings of the body. Can it be doubted but that, under this section, he may have his dissent recorded to as many parts of the proceedings as he may disapprove of? In the 19th section, the Governor is declared to have power, by the advice of the Council of State, to prohibit the exportation of!£ any” commodity. In the 23d section, officers offending against the State by a violation of “ any” part of the Constitution, are declared liable to impeachment. By the 25th, persons who have been receivers of the public money are rendered ineligible to “ any” office, until they shall have accounted for and paid into the Treasury the sums thus received. In the27th, it is declared that “any” member of the Senate, House of Commons, or Council of State, accepting a certain office, shall thereby vacate his seat. It is needless to multiply instances. In all of them, it is manifest that “any” isused in its largest sense, as synonimous with “whoever” or “whatever,” and as embracing one or more as the case may be.

It is further urged on the part of the plaintiff, that if a residence of twelve months within the State, be the qualification intended by this section, the words “in any county” are superfluous, and may be rejected as unmeaning. Without denying all force to this objection, it may, nevertheless, be observed, that amid the infinite varieties of style which give character to the expression of thought, the most rare is that which compresses within the smallest compass of words, while it faithfully conveys, all that is intended to be communicated. Redundancy of language is so common, that it would be hazardous to draw any definite conclusion with much confidence, from the mere use of unnecessary words. On the other hand, it is insisted, that if the purpose of the section be to require a residence of twelve months within the county where the vote is tendered, the words at the end of the section “for the county in which he resides” are not only superfluous but inappropriate. They are superfluous, because the sense would be complete without them; and they are inappropriate, for they hold out the idea that the county of residence on the day of election may be different from in which the previous term of residence has been completed. Upon the whole, were we to confine our attention altogether to the words of this section, we should probably lean to the construction set up by the defendant, because the other or more rigorous interpretation is not indicated with sufficient distinctness.

But however this might be, there are other considerations which tend very strongly to establish the interpretation which we are inclined to adopt upon the words of the section. In the immediately preceding section, prescribing the qualifications of voters for the other branch of the Legislature, the language is: — “ All freemen of the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of any election, and possessed of a freehold within the same county of fifty acres of land for six months, next before and at the day of election, shall be entitled to vote for a member of the Senate.” If the residence required by the 8th section were the same with that required by the 7th, how are we to account for the marked change of phrase from “ any one county” to “ any county”? Why is the emphatic and exclusive term “ one” used in the 7th section, discarded in the eighth? Again: In the 7th section where “ county” is twice mentioned, when it occurs the second time, it is described as the 11 same county.” Now, it is exceedingly improbable that in the 8th section, where county is also twice mentioned, the same form of expression would not have been used, when the word occurs the second time, if the same county were in this section also intended. This striking change of phraseology indicates a change of purpose. It indicates, we think, that for the exercise of the limited franchise of voting for a Senator, the Constitution requires not only a freehold, but a residence of twelve months in the county of the freehold; while it gives the more general right of voting for the popular branch of the Assembly to all freemen who have attained full age, and hove paid a public tax, and have resided twelve months in the State immediately precéding the election; and it provides that this right shall be exercised in the counties respectively, whereof they may be actually inhabitants at the time when their suffrages are given.

Besides, if the rigorous construction be adopted, every citizen who shall have removed from one county to another within twelve months before the election of members of the General Assembly, is, in that election, altogether deprived of a vote. He cannot vote in the county to which he has removed, because he has not been an inhabitant of that county for twelve months immediately preceding the day of election; not can he vote in the county from which he has removed, because he is not residing there at the day of election. Now, when we take into consideration, that when the Constitution was framed, elections were annual, it can scarcely be believed that this penalty of temporary disfranchisement, consequent upon every removal, was designed to be impospd. In the first place, the genius of the Constitution is favorable to the extended right of suffrage, which makes representation go hand in hand with taxation. No removal exempts the citizen from the obligation to pay his tax — and the right of being heard in the disposition of the revenue, to which he has contributed, will not lightly be supposed to be suspended by a change of residence from one side to the other of a county line. Still less should we be disposed to yield to this supposition, when we contemplate the known state of things when the Constitution was formed. Population was flowing in a regular and constant tide from the seaboard into the interior; every day new settlements were formed farther and farther towards the West; and new Counties were springing up, almost every year, as the Iudians retired, and the white men advanced into the more distant recesses of the forest.

The requisition of a previous residence of any duration in the county where the suffrage should be offered, was wholly unknown under the colonial government. The oath which the freeholder (for none but freeholders could then vote) was required to take, if his qualifications were-disputed, is given in Davis’s Revisal, page 248. “You shall swear that you have been six months an inhabitant of this Province; and that you have been possessed of a freehold of fifty acres land for three months past in your own right, in the county of-; and that such land hath not been granted to yoja fraudulently, on purpose to qualify you to give your vote; and that the place of your abode is in the county of-; and that you have not voted in this election.” A previous residence of six months, within the province, provided the person offering to vote had the requisite freehold qualification, entitled him to vote in the county which was the place of his abode on the day of election. The Constitution hath very clearly substituted the payment of a public tax for the freehold qualification, and required a residence of twelve, instead of a residence of six months- — but that it has introduced an entirely new qualification, a previous residence exclusively within the county in which the voter has his abode on the day of election, ought distinctly to appear, before we can presume it to have been intended.

Arguments upon the policy of a i^bied™ listened to eanti(^uch T1,e inte"> preters oí a Uw hare lhe right to ■judge of its 'policy, £,nd to find out the policy contempla-makers of* thtre'Ts great dan-Ions subject, for the opinions of those lone hthea" judge^of matters of policy,

Certain considerations of public policy have been suggest-en in the argument of the plaintiff ’s counsel as having probably operated on the minds of the framers of the Constitution, so as to induce them to require, and which should influence the judgment of the expounders of the-Constitution in construing it, to require this exclusive and continued residence as one of the qualifications of the voter.. It has been said that, without it, the voter cannot be supposed to have acquired that knowledge of the peculiar interests of the county, or that acquaintance with the character, talents and political views of the candidates for his suffrage,, as to enable him to aid in selecting- a fit representative of the county. Arguments of this kind, though undoubtedly admissible, are to be listened to with much caution. The in-«i terpreters oí a law have notthe right to. judge of its policy, and when they undertake to find out the policy contemplated by the makers of the law, there is great danger of mistaking their own opinions on that subject, for the opinions of those who had alone the right to judge of matters of policy. Now what is there, upon which we can ground any thing like a ' A ° jo confident belief, that the considerations now urged upon us had the weight with the framers of the Constitution supposed in this argument? Whether strong or weak, they are obvious considerations, and could scarcely have escaped notice. js ^ absurd to suppose that when, thus presented to notice, they were met by other considerations of policy, which, in their iudgment, outweighed them? Might not the Congress .jo? o o o have thought that in a State, almost exclusively agncultu-where the occupations in one county were the occupa-rions in all the counties, a residence of twelve months with- ' in the State was sufficient to give the citizen that knowledge <»f its general interest, to excite that sympathy for the com-111011 weal>and to afford that acquaintance with the princi-pies and talents of the candidates for popular favor, as to ren-it unwise to stifle altogether the voice of him who had ^11S 1,esidence between two or more counties? Such, beyond question, was the opinion which had been generally J , 1 , „ . . entertained up to the time of framing the Constitution; and without some evidence, we are not to presume that this opin-1011 was dien akalldoned- But,111 truth, the evidence, if any, is all the other way. Before the Revolution, there had been conferred on certain Towns a distinct right of representation in the legislative body; and this privilege, to a certain extent, was preserved and secured by the Constitution. The avowed purpose for granting this special franchise was for that the inhabitants of these towns, because of their peculiar pursuits, were supposed to have important interests, distinct from those of the great body of the community, which required the protection of representatives selected exclusively by them. Now, when the Constitution defines the qualifications of a voter in one of these towns, it explicitly declares that he shall either have a freehold in, and be a resident thereof, at the day of election, or “shall have been an inhabitant of such town twelve months next before and at the day of election;” thereby unequivocally manifesting that, in regard to these municipalities, having peculiar interests, it was designed that the voter should have that connection and sympathy with these interests as would induce him to prefer a fit representative of them. Thus we see, that when the framers of this instrument deemed an exclusive residence of a determinate duration, within the limits of a particular town, an sential qualification for a voter in that town, they declared this purpose m express terms: and the mxerence is almost irresistible, that such purpose would have been as plainly de-dared, with respect to the voters in a county, if, in regard to county representation, that purpose had been entertained___ jExpressio unius est exclusio alterius.

It may not be amiss to remark, that by a residence in the county, the Constitution intends a domicil in that county. This requisition is not satisfied by a visit to the county, whether for a longer or a shorter time, if the stay there be for a temporary purpose, and with the design of leaving the county when that purpose is accomplished. It must be a fixed abode therein, constituting it the place of his home. This residence or domicil is a fact not more difficult of ascertainment, when required as the qualification of a voter, than residence or domicil at the moment of a man’s death, which is so important in regulating the disposition and management of his estate after death.

It has been urged that there is more room for the commission of frauds, if the liberal construction insisted on by the defendant be adopted, than there would be if the rigorous construction contended for by the plaintiff were established.

The correctness of this remark is admitted. There is not the same facility in feigning with success a continued residence of twelve months in a county, as in falsely pretending a residence on the day of the election — nay, it may be, when a general election throughout the State takes place in neighboring counties, on different days, that, by a change, or a pretended change of residence, between these different days, the fraud may be practised of voting twice at the same election. But the remark is of little weight, as an argument, to show what is the qualification actually required by the Constitution. It proves only, that the more the elective franchise is fettered by restrictions, the more difficult becomes the usurpation of it by those not entitled — but it neither proves, nor tends to prove, that because of such difficulty, the franchise is to be restrained by construction where it is not clearly restrained by the Constitution. The sole enquiry is, what are the limits there imposed upon it? and it is the proper business of legislation to prevent those abuses of fraud or violence, to which all that is valuable here below is necessarily exp0sed. In the discharge of this duty, the Legislature has provided that every person tendering a vote, at any election, may be required to swear that he has not previously voted in that election, and that he possesses the qualifications required of a voter by the Constitution; and it has also imposed penalties on those who may vote contrary to law. If these provisions, and those securing impartial judges of election, should prove ineffectual, it is not to be doubted but that other and more efficacious provisions will be devised to meet' the mischiefs disclosed by experience.

We believe that, in truth, frauds in elections arenot'often committed with us. There has been, we understand, some difference of opinion in a few of the counties in relation to the question now under consideration, which has produced an unsteadiness of practice, which, in moments of strife and excitement, is too readily ascribed to corrupt motives. The general opinion and the general practice have, undoubtedly however, been in conformity with what we understand to be the true meaning of the Constitution. That meaning, once fully settled and generally known, there is great cause to hope that neither fraud nor mistake m relation to this subject will prevail to any very injurious extent. It is the opinion of this Court, that the judgment of the Superior Court ought to be reversed with costs.

Per Curiam. Judgment reversed.