Lassiter v. Northampton County Board of Elections

102 S.E.2d 853, 248 N.C. 102, 1958 N.C. LEXIS 368

• Court: Supreme Court of North Carolina
• Decided: April 9, 1958
• Docket: 170
• Status: Published

Opinion

Winborne, C. J.

The immediate question on this appeal is this: ■ Is plaintiff, upon the agreed statement of facts, entitled to register for voting without meeting the test of reading and writing any section of the Constitution of North Carolina in the English language, as required by General Statutes 163-28 as amended? The trial court was of opinion that plaintiff is not so entitled to register. This Court concurs in this ruling.

General Statutes 163-28 as amended by 1957 Session Laws of North Carolina, Chapter 287, Section 1, effective 12 April, 1957, under caption “Voters must be able to read and write; registrar to administer section,” declares that “Every person presenting himself for registration shall be able to read and write any section of the Constitution of North Carolina in the English language,” and that “it shall be the duty of each registrar to administer the provisions of this section.”

And in the same act, 1957 Session Laws, Chapter 287, the General Assembly of North Carolina made provision (1) for appeal to County Board of Elections from registrar’s denial of registration, G.S. 163-28.1; (2) for hearing de novo upon such appeal before County Board of Elections, G.S. 163-28-2; (3) appeal from judgment of County Board of Elections to Superior Court, and hearing thereon; and (4) appeal from judgment of Superior Court to Supreme Court, G.S. 163-28.3.

The plaintiff applied for registration and refused to submit to, and qualify for the educational test — that is, either to read or write any section of the Constitution of North Carolina as related in the foregoing stipulation of facts. And for this reason, and this reason alone, she was not admitted to registration.

At the outset she contends that the above provisions of G.S. 163-28 are unconstitutional by reason of conflict with the suffrage provisions of the Constitution of North Carolina.

In this connection it is appropriate to trace the history of Article VI, of the Constitution of North Carolina, omitting sections not necessary to inquiry in hand.

Beginning with the Constitution of the State of North Carolina “done in convention at Raleigh, the sixteenth day of March in the year of our Lord one thousand eight hundred and sixty-eight, and of the Independence of the United States the ninety-second,” the pertinent provision as to “suffrage and eligibility to office” is contained in Article VI, as amended by the Constitutional Convention of 1875, to read as follows:

“Section 1. Every male person, born in the United States, and every male person who has been naturalized, twenty-one years old or upward, who shall have resided in the State twelve months next preceding the election, and ninety days in the county in which he offers to vote, shall be deemed an elector. But no person, who upon conviction or confession in open court, shall be adjudged guilty of a felony or of any other crime infamous by the laws of this State, and hereafter committed, shall be deemed an elector, unless such person shall be restored to the rights of citizenship in a manner prescribed by law.

“Sec. 2. Registration of Electors: It shall' be the duty of the General Assembly to provide, from time to time, for the registration of all electors, and no person shall be allowed to vote without registration, or to register, without first taking an oath or affirmation to support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith * * * .”

Thereafter the General Assembly of 1899 passed an act entitled “An Act to Amend the Constitution of North Carolina,” P.L. 1899, Chapter 218, abrogating Article Six of the Constitution of North Carolina, and proposing a substitute thereof, to be submitted at the next general election on May 1, 1899, but it was not so submitted. However, the General Assembly, at its adjourned session of 1900, passed another act, Chapter 2, Laws of Adjourned Session 1900, entitled “An Act Supplemental to an Act entitled ‘An Act to Amend the Constitution of North Carolina/ ratified February twenty-first, eighteen hundred and ninety-nine, the same being Chapter two hundred eighteen of the Public Laws of eighteen hundred and ninety-nine” reading as follows:

“The General Assembly of North Carolina do enact:

“Section 1. That Chapter 218, Public Laws of 1899 entitled ‘An Act to Amend the Constitution of North Carolina/ be amended so as to make said act read as follows: ‘That Article Six of the Constitution of North Carolina be and the same is hereby abrogated, and in lieu thereof shall be substituted the following Article of the Constitution as an entire and indivisible plan of suffrage,

‘Article VI

‘Suffrage and Eligibility to Office

- ‘(Section 1) Every male person born in the United States, and evéry male person who has been naturalized, twenty-one years of age, and possessing the qualifications set out in this Article, shall be ■entitled to vote at any election by the people of the State, except as herein otherwise provided. ,

‘(Sec. 2) He shall have resided in the State of North Carolina for two years, in the county six months, and in the precinct, ward, or other election district, in which he offers to vote, four months next preceding the election: Provided, that removal from one precinct, ward, or other election district, to another in the same county, shall not operate to deprive any person of the right to vote in the precinct, ward or other election district from which he has removed until four months after such removal. No person who has been convicted or who has confessed his guilt in open court upon indictment, of any crime, the punishment of which now is, or may hereafter be, imprisonment in the State’s Prison, shall be permitted to vote, unless the said person shall be first restored to citizenship in the manner prescribed by law.

‘ (Sec. 3) Every person offering to vote shall be at the time a legally registered voter as herein prescribed, and in the manner provided by law, and the General Assembly of North Carolina shall enact general registration laws to carry into. éfféct the provisions of this Article.

' (Sec. 4) Every person presenting himself for registration shall be able to read and write any section of -the Constitution ’ in the English language; and before he shall be entitled to vote, he shall have paid on or before the first day of May, of the year in which he proposes to vote, his poll tax for the previous year, as prescribed in Article V, Section 1, of the Constitution. But no male person, who was, on January 1, 1867, or at any time prior thereto, entitled to vote under the laws of any State in the United States wherein he then resided, and no lineal descendant of any such person shall be denied the right to register and vote at any election in this State by reason of his failure to possess the educational qualifications herein prescribed: Provided, he shall have registered in accordance with the terms of this section prior to December 1, 1908.

‘The General Assembly shall provide for the registration of all persons entitled to vote without the educational qualifications herein prescribed, and shall, on or before November 1, 1908, provide for the making of a permanent record of such registration, and all persons so registered shall forever thereafter have the right to vote in all elections by the people of this State, unless disqualified under Section 2 of this Article: Provided, such person shall have paid his poll tax as above required.

‘ (Sec. 5) That this amendment to the Constitution is presented and adopted as one indivisible plan for the regulation of the suffrage, with the intent and purpose to so connect the different parts, and to make them so dependent upon each other, that the whole shall stand or fall together * * * .’ ”

Section-9-declares that if a majority of votes be cast at the next general election in favor of this suffrage amendment, it shall go into effect on July 1, 1902.

And machinery is provided for submitting the question to a vote of the people, and for determining and declaring the result of the election, and the certification and enrollment of the amendment among the permanent records of the office of Secretary of State.

The act was in force from and after ratification — June 13, 1900.

' The amendment to the Constitution was submitted to and approved by the qualified voters of the State at the next general election, and became Article VI of the State Constitution, and enrolled as required January 25, 1901.

Since the adoption of amendment last above mentioned, Article VI of the Constitution has been amended as follows:

(1) The next General Assembly at its 1919 session, passed an act, Chapter 129, entitled “An Act to Amend the Constitution of the State of North Carolina,” which amended Sections 2 and 4 of Article VI as follows: “IV. By striking out the first sentence of Section.2 of Article VI, and substituting therefor the following: ‘He shall reside in .'the State of North Carolina for one year and in the precinct, ward or other election district in which he offers to vote, four months next preceding the election,’ ” and

“V. By striking out of Section 4 of Article VI the following: 'And before he shall be entitled to vote he shall have paid, on or before the first day of May in the year in which he proposes to vote, his poll tax for the previous year as prescribed in Article V, Section 1, of the Constitution.’ ” And the act declared that amendments IV and V as just stated be considered as one amendment and submitted to the voters of the whole State at the next general election. However, this was not done. But at the extra session of 1920 the General Assembly passed Chapter 93 of the Public Laws of that session entitled: “An act to amend Chapter 129 of the Public Laws of 1919, and to further amend the Constitution of the State of North Carolina” as follows: “Section 1, Chapter 129 of Public Laws of 1919 be and the same is hereby amended so as to hereafter read as follows: ‘Sec. 2. That the Constitution of the State of North Carolina be and the same is hereby amended in manner and form as follows * * * .’

“IV. By striking out that part of the first sentence of Section 2 of Article VI ending with the word ‘election’ before the word ‘provided’, and substituting therefor the following: ‘He shall reside in the State of North Carolina for one year and in the precinct, ward or other election district in which he offers to vote, four months next preceding the election.’

“V. By abrogating the following requirement of Section Four of Article VI: ‘And before he shall be entitled to vote he shall have paid, on or before the first day of May in the year in which he proposes to vote, his poll tax for the previous year as prescribed by Article Five, Section 1, of the Constitution’ and by abrogating the following proviso at the end of Section Four, Article VI: ‘Provided such person shall have paid his poll tax as above required.’ ”

Moreover, the act, Chapter 93, Public Laws Extra Session 1920, declared that these amendments IV and V be considered as one amendment and submitted to the qualified voters of the whole State at the next general election. This was done, and the amendments were adopted and then enrolled by the Secretary of State on January 8, 1921.

The next amendment was proposed by the General Assembly 1945 Session Laws, Chapter 634, as follows: “Sec. 2. That Section 1 of Article VI of the Constitution of the State of North Carolina be amended to read as follows: ‘Section 1. Who May Vote. Every person born in the United States, and every person who has been naturalized, 21 years of age, and possessing the qualifications set out in this Article, shall be entitled to vote at any election by the people of the State, ex cept as herein otherwise provided.’ ” This act repeals all laws and clauses of laws in conflict with its provisions. And the General Assembly authorized the submission of the amendment to the qualified voters of the State in the next general election. This was done, and the amendment was adopted, and then enrolled by the Secretary of State on December 10, 1946.

Lastly, the General Assembly at its 1953 session, Chapter 972, passed an act, the terms of which re-wrote the first sentence Section 2 of Article VI, so as to reduce the length of residence for voting in a voting precinct. And this was submitted to the qualified voters of the entire State at the 1954 general election and adopted, and then enrolled December 8, 1954.

Otherwise Article VI remained as adopted in 1902, as above recited.

The appellant contends that the indivisibility clause is a “built-in extinguishment of the entire 1902 amendment,” and, that, as a result, the suffrage provisions are re legated to Article VI as it appears in the Constitution of 1868 as amended by the constitutional convention of 1875, and, hence, there is no constitutional authority for the General Assembly to enact G.S. 163-28. But attention is directed to the 1945 amendment for such authority.

In this connection we find in 16 CJS 67 Constitutional Law, Section 26, this pertinent declaration of principle: “As the latest expression of the will of the people a clause in a constitutional amendment will prevail over a provision of the Constitution or earlier amendment inconsistent therewith, for an amendment to the Constitution becomes a part of the fundamental law, and its operation and effect cannot be limited or controlled by previous constitutions or laws that may be in conflict with it.”

So, irrespective of the questions now raised, as to the validity of the provisions of the 1902 amendment, and as to the effect thereof upon the provisions of Article VI of the Constitution of 1868' as amended by the Constitutional Convention of 1875, when the General Assembly came to consider the proposed amendment of 1945, Article VI then factually appeared intact and unchallenged. Therefore ■ the provisions óf the 1945 amendment must be considered in the light of this fact. Thus, when, as to who may vote, the General Assembly declared that- “Every person born in the United States, and every person who has been naturalized, 21 years of age, and possessing the qualifications-set out in this article shall be entitled to vote * * * ,” the clause “possessing the qualifications set out in this article,” was intended to mean, and was made certain by, the qualifications appearing upon the face of the Article VI, so unchallenged. And one-of those qualifications was set forth in Section 4 of Article VI wherein it was required that “Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.”

“In the absence of constitutional inhibition part or all of an existing statute may, by specific and descriptive reference thereto, be incorporated into another statute.” 82 CJS 123, Statutes Sec. 70(b).

Indeed, under such circumstances, “the provisions of a law which lapsed or has been repealed may be made a part of a new statute by referring to the law in general terms and without incorporating such provisions at length; reference may be made to an act which is repealed and succeeded by the act making the reference for the purpose of adopting provisions of the succeeded act; and repealed acts, some of which are invalid, may be adopted by reference for purposes of identification. The validity of the referring act is unaffected when it is complete within itself when read in the light of the matter so identified,” 82 CJS 124, Statutes Sec. 70(b).

And this Court in Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E. 2d 333, opinion by Parker, J., declaring that “Unless prohibited by constitutional restrictions, reference statutes are frequently recognized as an approved method of legislation to avoid - encumbering the statute books by unnecessary repetition,” has applied the principle.

In this light, the 1945 amendment so proposed and later adopted had the effect of incorporating and adopting anew the provisions as to thé qualifications required of a voter as set out in Article VI, freed of the indivisibility clause of the 1902 amendment. And the way was made clear for the General Assembly to act.

In this connection, a doctrine firmly established in the law is that a State Constitution is in no matter a grant of power. All power which is not limited by the Constitution inheres in the people, and an act of a State legislature is legal when the Constitution contains no prohibition against it. 11 Am. Jur. 619 — Constitutional Law.

The Constitution of North Carolina, Article 1, Sec. 2, declares: “All political power is vested in, and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”

, Moreover, it is noted in Guinn v. United States, 238 US 347, 59 L.ED. 1340, that Chief Justice White of the Supreme Court of the United States, said: “No time need be spent on the question of the validity of the literacy test, considered alone, since as we have seen, its establishment was but the exercise by the State of a lawful power vested ,in it, not subject to' our supervision, and, indeed, its validity is-admitted. Whether this test is so connected with the other one re lating to the situation on January 1, 1866, that the validity of the latter requires the rejection of the former, is really a question of State law; but in the absence of any decision on the subject by the Supreme Court of the State, we must determine it for ourselves.”

In this respect, the statute, then Section 5939 of Consolidated Statutes, later G.S. 163-28, was the subject of judicial interpretation by this Court, in the case of Allison v. Sharp, 209 N.C. 477, 184 S.E. 27, decided 26 February, 1936. And the Court, in opinion by Clarkson, J., held it to be constitutional.

And the provisions of G.S. 163-28 apply alike to all persons who present themselves for registration to vote. There is no discrimination in favor of, or against any by reason of race, creed, or color. Hence there is no conflict with either the 14th, 15th or 17th Amendments to the Constitution of the United States.

.For reasons stated, the judgment from which appeal is taken is

Affirmed.