Martin v. Fullam

97 A. 442, 90 Vt. 163, 1916 Vt. LEXIS 254

• Court: Supreme Court of Vermont
• Decided: April 8, 1916
• Status: Published

Opinion

Watson, J.

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 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 this1 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 for on the referendum as provided for in section 101 of this act.” By the Act of 1912, relating to the proposed articles of amendment to the Constitution, it was provided (Sec. 2) that the people should be assembled for the purpose of voting on said articles, in the respective towns and cities at the same time and place as for the annual town or city meeting, and that the warning for each meeting should contain an article, “To see if the freemen will vote to accept or reject the proposed articles of amendment to the Constitution of Vermont.” By the Act of 1912, No. 13, to provide for the erection of a State building, the selectmen of each town, when preparing the warning for the annual March meeting in 1914, were required to incorporate in such warning an article, in short, to see if said Act should “become a law July 1, 1914.” And under section 10, “All regulations provided by law for conducting general elections shall be applicable to the votes provided for on the referendum as hereinbefore provided.” There, as in the Acts of 1915, it was made the duty of the secretary of state to furnish the town clerk of each town with ballots to be used in such voting, and he was to canvass the returns made to him by the town clerks, as to the result of the vote, and issue his proclamation certifying the result of the vote, and declaring the time when the provisions of the Act should take effect.

In the Acts under consideration, it should be noticed, too, that in section 33 of the Primary Act, and in section 59 of the Prohibitory Act, the word “ballots” does not mean the same as the word “votes.” The two sections refer to “ballots to be used,” meaning the same thing as the same phrase in the preceding section in each Act, where provision is made for the furnishing by the secretary of state of “ballots to be used,” etc. As used the term “ballots” means the instruments by which the voters are to express their choice; and the word “votes” has reference to their expression of choice by the use of such instruments. See Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859; State v. Blaisdell, (N. D.), 119 N. W. 360. And the last clause in each of the sections mentioned by number, has reference to such regulations for conducting a general election, as are appropriate to the conduct of voting in the particular town. Giving this construction, the matter of check lists not being mentioned, we think the Acts contemplate that the general provisions of P. S. 85, relating to check lists in connection with annual town meetings, should govern. There is nothing indicating that any check list is required, other than the law of that section, and there the requirement depends upon the town being of more than four thousand inhabitants, or upon a petition in writing of twenty or more of the legal voters being presented to the selectmen. In either of those events the selectmen are required, at least thirty days before the annual town meeting, to make a cheek list of the persons qualified to vote at such meeting, cause copies thereof to be posted, etc. If no check list has been provided as required by that section, the right of a man to vote on the questions under referendum does not depend upon the presence or absence of a cheek list; but rather upon whether he falls within the class of voters contemplated by the Legislature. If a cheek list were required in every town in any event, the two enactments, like the Act submitting to the people the question of the proposed constitutional amendments, would most likely have had provisions expressly relating thereto. ‘ ‘ A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one of which will carry out and the other will defeat such manifest object, it should receive the former construction.” In re National Guard, 71 Vt. 493, 45 Atl. 1051; Ex Parte Cohen, 104 Cal. 524, 38 Pac. 364, 26 L. R. A. 423, 43 Am. St. Rep. 127.

If the purpose of the Legislature was to place the matter of such voting before the town meeting as such, it was very easy to say so in apt language, and to get the expression of those who could legally vote in such meetings, without making the regulations for conducting general elections applicable to the votes provided for. The view here expressed is strongly borne out by the provision in each Act that “a special box shall be provided for the reception of ballots provided for in this Act, which shall be opened at the hour the meeting is called, and shall remain open until the close of the meeting not earlier than three o’clock in the afternoon.” It is significant in the same direction that no officer of the town meeting has authority to declare the result of the votes so given, it being made the duty of the respective town clerks to report to the secretary of state the result of the votes, and of the latter to canvass the returns and issue his proclamation certifying the result, not in any town or towns, but in the whole state. From the above considerations, it is manifest that the questions upon which is sought the public opinion by referendum, were not placed before the town meeting as such; but for convenience, and perhaps for economy, they were placed before the people at that time and place, not as a town meeting wherein only those who paid their taxes before a specified date had a right to vote, but in effect as a special meeting of the freemen, in which all those who are entitled to vote at general elections may vote irrespective of the payment of their taxes. The legislators are the representatives of the people, and nothing short of plain and unmistakable language, showing such to have been the intention of the Legislature, will justify the conclusion that these important state-wide questions, involving public policy, were submitted by that representative body, other than to the people it represents, in other words to the electorate. To submit those questions to less than the entire voting element of the people, would be in conflict with the fundamental principle of democracy, “the exercise of power by the mass of the people.”

The record shows that the check list which the defendants, as the board of civil authority, were revising on the 26th day of February, was a copy of the check list filed in the town clerk’s office of the town by the selectmen, under the provisions of section 85 of the Public Statutes. We understand this to mean that it is a cheek list required by the provisions of that section. It follows that the relator was entitled to have his name inserted thereon, as he demanded, so that he may vote on the referenda under the two Acts of 1915, at the time of the annual meeting of the town of Brookfield, March 7, 1916.

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 toivn 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.