May & Thomas Hardware Co. v. Mayor of Birmingham , 123 Ala. 306 ( 1898 )

McCLELLAN, C. J.

Article XVII, § 1 of-the constitution is as follows: “The general assembly -may, whenever two-thirds of each house shall deem it necessary, propose amendments to this constitution, which, having-been read on three several days in each house, shall -be duly published in such manner as the general assembly may direct,-at least three months before the next general election for representatives, for’ the consideration of the people; and it shall be the duty of-the several returning officers, at the next general election which shall be held for representatives, to open a poll for the vote of the qualified electors on the proposed amendments, and to make a return of said vote to the secretary of-state; ánd, if it shall thereupon appear that a majority of .all-the qualified electors of the State, who voted at said election, voted in favor of the proposed amendments, said amendments shall be valid, to all intents and purposes, as parts of this constitution; and the result of such election shall be made known by proclamation of the Governor.” Under; and in supposed conformity to this organic provision, the general assembly of 1896-97 passed an act “To submit to the people of the State at the general election to be held on the first Monday in August, 1898, for representatives, for their consideration, an amendment to section seven, article eleven of the constitution, providing a special tax of one-lialf of one per centum for the city of Birmingham, to be applied to the payment of interest on the bonds of said city, and for a sinking fund to pay off said bonds at the maturity thereof.” Section 1 of this act proposes the amendment indicated in the title and sets forth the terms and form thereof. Section 2 provides for the publication of the proposed amendment. And section 3, relating to the taking of the vote of the electors on the proposed amendment, is as follows: “Bee. 3. Be it further enacted, That at the general election to he held on the first Monday in August, 1898, the qualified electors shall vote on said amendment, and it shall be the duty of the probate judge in each county of the State to have printed upon the official ballot to be used in their respective counties at said election the words, ‘For Birmingham Amendment,’ said words to be printed after the names of candidates for State offices and before the names of candidates for county offices. Any ('lector desiring to vote for said amendment shall leave said words intact upon his ballot, and any elector desiring to vote against said amendment shall evidence his intention to so vote by erasing or striking out said words with pen or pencil. The leaving of said words upon the ballot shall be taken as a favorable vote, and the erasure or striking out of said words as aforesaid shall he taken as an adverse vote, upon said amendment.” Section -1 of the act provides for a count of the “votes given on the proposed amendment,” and section 5 provides for proclamation by the Governor of the result if favorable to the amendment.

This statute was complied with, the proposed amendment. was submitted to the electors, voted upon and adopted by them according to the terms of the enactment, the vote was counted, the result declared, and the Governor issued his proclamation making known the result. The city of Birmingham levied the additional tax of one-half of one per cent, authorized by this supposed amendment, and assessed the taxable property of the city accordingly. The May & Thomas Hardware Company paid this additional lax on its property upon compulsion and under protest, to the tax collector of said municipality, and brings this action to recover hack the amount so paid upon the ground that said amendment was not submitted to the electors of the State in the mode provided by the constitution, hence was not constitutionally adopted, and is not part of the organic law; and, confessedly, if this position be well taken the tax is illegal, and plaintiff is entitled to recover. The city court sustained the amendment, and entered judgment for the defendant, and from that judgment this appeal is prosecuted.

And tlie position of appellant, as we understand it, is that section 3 of the act is unconstitutional and void, (and that of consequence the amendment declared to have been adopted at the election held under it is likewise void) for that, -first, that section violates the spirit and purpose of section 1 of Article XVII of the Constitution, quoted above, which requires to the validity of an amendment that a majority of all the qualified voters voting at the election shall vote in favor of the proposed amendment, and, second, that the statute, or rather said section 3 thereof, is violative of section 1 of Article VIII of the Constitution, which prescribes the qualifications of electors, and guarantees to every. citizen possessing the prescribed qualifications the right to vote at every election by the people.

And the argument in support of the first proposition is, in the brief of appellant’s counsel, thus epitomized:

“(a). Under the provisions of the statute, the amendment might be declared adopted although a majority of all the qualified voters of the State, 'who voted at the election, had no intention, Avlien they voted for State and county offices, to Arote upon the proposed amendment, or did not manifest any intention to Vote for the amendment, or desired to refrain from voting on the proposition.

“(b). The provisions of the statute render it impossible to ascertain with certainty Avhether a majority of all the electors of the State, aa'Iio A'oted at the election, actually and affirmatively Aroted for the amendment within the spirit and meaning of the constitution.

“(c). The constitution requires positive* affirmative action on the part of the elector to manifest an intention to Arote in favor of the amendment, and ho action to manifest an intention to vote against it: this statute requires positive, affirmative action on the part of the elector to manifest an intention to vote against the amend-' ment, and no affirmative action to manifest an intention to Arote in fav'or of it.

“(d). Tlie constitution presumes that every elector who votes for any State or county office at the election but fails to vote, or for any reason refrains from voting on the proposition to amend is against the amendment, and, in effect, requires his ballot for State and county offices to be counted as a vote against the amendment: this statute assumes that every elector who does not wish to vote directly against the amendment by striking out the words 'Por Birmingham,Amendment,’ will vote in favor of it, and requires his ballot to be counted in favor of the amendment, although he’may have had no intention to vote in favor of it, or any knowledge that any such proposition was pending'to be voted on.”

It may well be assumed that the foregoing skeleton of counsel’s argument presents every consideration worthy of attention against the validity of this statute under section 1 of Article XYII of the Constitution. Certainly no other plausible objection to its integrity occurs.to us; and upon .the positions taken by them we will consider this part of the case. In the outset .it is, of course, to be admitted that it is essential to the adoption of any proposed amendment to the constitution that a majority of the electors voting at the election at which the proposition is submitted should vote for the amendment: That is the plain requirement of the organic law. And, of course, any statute which undertook to provide for the adoption of- such an amendment upon a less number of favoring votes than a majority of those so voting, or which made it possible, in legal contemplation, for the amendment to rest upon the favoring votes of a minority of the. electors so voting, would be violative of the constitution and void. It is further to be taken for granted that a vote for a proposition necessarily implies the expression of the voter’s opinion, position or preference in favor of or for that proposition; and a statute which authorizes-or admits of the counting for a proposed amendment to the constitution a ballot which does not involve directly or by necessary implication such expression favorable thereto Avould be invalid and of no effect. And so the inquiry in this connection-is, whether this statute authorizes or admits of the counting for this amendment of ballots which can be said not to evidence the voters’ predilection for and intention to support the amendment, or rather, which cannot be said to manifest such predilection and intention. We do not think the enactment authorizes or admits of any such thing. Every voter is presumed to know what is on any ballot he deposits as an expression of his will upon men and measures submitted for his consideration and action as an elector. Every voter who can read does know what his ballot contains. And the law furnishes the illiterate voter with easy and convenient means of information as to what his ballot contains. And when he deposits it, the presumption of law is that he, as well as his educated fellow elector, knows what is upon it and has expressed the desire as between candidates and upon propositions which the paper indicates. This presumption of law is absolutely essential to popular government. The presumption is indulged because every practical means has been resorted to to acquaint the voter with the contents of his ballot and he in fact does know its contents. If the fact Avere otherwise the presumption could not exist, and government by ballot Avould be impossible. Until within a feAv years past, it was and for long had been, under the present and former constitutions, the law and practice for the names of only a certain set of candidates, the nominees of a political party, to appear upon a ballot. Tlie A'oter Avho deposited such a ballot without erasing any of the names upon it thereby expressed his choice of all the persons Avhose names so appeared. If he Avislied not to Arote for any person on the ticket, he could do so only by striking out that name. If he Avished to Arote for a person for a particular office Avhose name did not appear on the ballot he would have to strike out the candidate for that office whose name did appear, and substitute the name of the person of his choice. If he erased no name, he Avas conclusively presumed to have voted for every person on the list. Or, when there had been no party nominations and all candidates for a given office appeared on the same ballot, as frequently occurred, the voter had to erase the names of all the candidates except the one for AArhom he intended to vote; and if he left all the names on the ballot he was held to have voted for the person Avhose name first appeared thereon; and tliat all candidates might Imve equal advantage in vieAV of the laAv on this point, it was the custom to give priority on the ballot to each on an equal number of tickets, so that if A. B. and Y. Z. Avere candidates for an office and a thousand tickets were printed, the name of A. B. would appear first on five hundred tickets and that of Y. Z. would appear first on the remaining five hundred. And Avhere there was a party ticket and no erasure upon it, the conclusive presumption of laAv was that the voter intended to Arote for every person whose name appeared to fill the office for which he was a candidate as indicated by the ticket; or, in other Avords, that he kneAV all that the ticket contained, and adopted it as the expression of his views, and there was really never any question of fact as to whether such tickets actually represented the intent of the voters: they always did. So where the names of two or more candidates for the saíne office appeared, and there Avas no erasure, the láw held the voter to a knowledge that under the law the first named person would be credited with having received his vote; and, while, as we have seen, there was some notion abroad under this provision of laAv and the practice that in such case the person first named might be credited with votes Avliich Avere not intended to be cast for him, or for the office at all, leading to the alternation of names through a series of tickets yet, it was never seriously questioned that such a ballot represented in point of fact the affirmative choice of the voter for the first named candidate. And such was the necessary and conclusive presumption of laAv based upon substantial uniformity of fact. Affirmative manifestation of the voter’s intent was as essential then as it is now; and it was then and is now as essential in respect of the election of officers as it was then and is now in respect of propositions submitted to the electors. And it Avas then and has always been held that the neecessary affirmative manifestation of intent is that manifestation which appears on the words of the ballot which the voter deposits, even when those words take on a peculiar meaning from their collocation by sheer force of a statute of which the voter might be entirely ignorant; and all this regardless of the voter’s illiteracy. How much stronger then and more fully justified is the presumption when a voter casts a ballot upon which is printed the information that an amendment to the Constitution is to be voted upon, ,and that if he deposits that ballot as it is he expresses his favor for the amendment, when, to state this-case, there is printed on the official ballot the words “For Birmingham amendment” — how' much nearer to absolute certainty is the affirmative expression of his will, and that it is an affirmative manifestation of his purpose to support and favor the amendment. And this is all the Constitution in respect of the adoption of such amendments requires: that the voter shall vote for the amendment, that he shall favor the adoption of the amendment, that he shall deposit a ballot which on its face, assuming knowledge on his part of its contents, evidences his wish that the proposed amendment should become part of the organic law. And so, indulging this presumption, because it is justified by the facts and is a sine qua non to government b;y the people, there is no difficulty in ascertaining with the same certainty that has always sufficed in elections ■whether >a majority of the voters voting at the election provided for in this act “actually and affirmatively voted for the amendment within the spirit and meaning of the Constitution.” Since the result is to be arrived at by counting for the amendment all the ballots which have the words “For Birmingham amendment” intact upon them, and against it all those ballots from which those words have been erased, there is no danger of the adoption of the amendment being declared although a majority of the A-oters had no intention to A'ote on or for the amendment; but to the contrary the ballots themselves conclusively evidence that manifestation of the voters7 intention Avliich the Constitution requires. And this is all that the Constitution does require' — a majority of the ruffes cast at that election for the amendment. When there is such majority shown by .affirmative ballots, the Constitution is not concerned about the minority. If that minority desired not to vote at all on the proposition and so to be counted against it, the fact that under this act they had to vote one Avay or the other, had either to strike off the amendment, and so vote against it, or to leave it on, and so vote for it, does not destroy the integrity of the majority of the whole vote at that election, who have in legal contemplation affirmatively expressed their favor for the amendment The whole argument for appellant on this part of the case, it seems to us, is at fault in assuming that the casting of a ballot upon which is printed the words “For Birmingham amendment,” is not affirmative action on tlie part of the voter in favor of the amendment. That assumption being eliminated, the argument falls to the ground, and the conclusion we are asked in this connection to draw against the law has nothing to rest upon.

As part and in conclusion of our discussion of the case in this connection, we adopt an opinion upon it prepared by Judge R. W. Walker at the instance of appellee’s counsel. After stating the provisions of section 3 of the act, he says:

“The question submitted is: Is there anything in the Constitution of Alabama which prohibited the legislature from making the regulation contained in said section in respect of the preparation of the ballot and the manner of voting/in other words, was it competent for the legislature to prescribe that the words ‘For Birmingham -amendment’ should be printed on the official ballots, and to declare that ‘the leafing of said words upon the ballot shall be taken as a favorable vote, and the erasure or striking out of said words shall be taken as an adverse vote upon said amendment?’

“The extent of the requirements of the Constitution of Alabama touching the method of voting upon a proposed - amendment of that instrument is the provision that all. elections by the people shall be by ballot, and the provision for the opening of a poll for the vote of the qualified electors on the proposed amendment. These two provisions together amount simply to a requirement that a proposed amendment shall be submitted to the qualified electors of the State for their vote ■lipón it by ballot. The Constitution expressly remits to the general assembly the matter of regulating and gov■erning election by laws Avhicli are required to be uniform throughout the State. It cannot be doubted that the form of the ballot and the method of- indicating the voter’s choice are matters for legislative regulation. Of course, it would not be competent for the legislature, under the anise of regulations, to effect a practical denial of the free exercise of the elective franchise. But there can be no question of a regulation really amounting to a deprivation of the right to vote where the meaning of what is put upon the ballot required to be used by the voter is plain to a eommin understanding, and the method prescribed for the indication of his choice by the voter is easy to be comprehended and not difficult to be followed. It is certainly not unreasonable to assume that the voter is to inform himself of the contents of the ballot he' casts, where the meaning is obvious to one who can read, and could not be misunderstood by an illiterate voter who seeks information as to what is upon the ballot put into his hands. The words ‘For Birmingham amendment/ printed in a conspicuous place upon the ballot in question, plainly indicate a choice in favor of the amendment. A voter casting a ballot known to have these words upon it must have understood that lie was thereby expressing himself in favor of the amendment. If lie wished to vote against the proposed amendment, all that was required was the erasure or striking out with pen or pen cal of those words. The method prescribed by the statute for the voter indicating his choice to vote for or against the amendment was simplicity itself; and, though that method varied from the one adopted in the recently enacted general election law, yet it was a method by no means unfamiliar to the electors of the State. As to the method of voting-on this amendment, the legislature simply revived the old way, familiar to the people, of casting an adverse vote by ‘scratching the ticket.’• It seems that any suggestion against the validity of the provision in question must be based upon the assumption that it was not competent for the legislature to make a provision in reference to the ballot which involves .the possibility of a vote in favor of a person or proposition being the result of the voter’s deliberate or negligent failure to inform himself of the contents of the ballot he casts and of the method prescribed by law for the indication of his choice. Any such assumption I regard as Avholly unwarranted. Where the method of indicating his choice the one Avay or the other is plain and simple, the provision on the subject cannot be rendered invalid by the mere possibility that, as the result of the carelessness of the voter, his act in easting his ballot may have an effect not actually contemplated by him.”

And so we conclude that the first objection to the act relied on, as stated in the beginning of this opinion, by appellant’s counsel is untenable and unavailing.

Of the second ground of objection to the act above stated little, we think, need be said. It is, to repeat, that “the statute violates section 1 of Article VIII of the Constitution, which fixes the qualifications of voters and guarantees to every citizen possessing these qualifications the right to vote at every election by the people.” And the argument is that inasmuch as the Constitution does not require the elector to vote upon all offices to be. filled at an election, but only in respect of such as he desires, and that, as is insisted, the same principle obtains in respect of an amendment, so that the organic law contemplates that an elector voting for candidates for office may refrain from voting for amendments, this statute adds an additional qualification in that it requires him to vote on- this amendment as a necessary incident to his vote on offices, or as said by counsel : “The statute takes away from the elector his right, recognized by the Constitution to refrain from voting-on the amendment and at the'same time to vote for the State and county offices to be filled at the election.” This position takes no account of the consideration that under any possible form of submitting a proposed amend, ment to the people every elector who votes for a State or county office at the election must through the operation of the Constitution itself in effect vote for or against the amendment. Article XVII, section 1 provides, as we have seen, that an amendment must receive “a majority of all the qualified electors of the State who vote at” the general election to, which it is submitted, a majority, not of those who vote on the amendment, but of those who deposit ballots for any purpose. TIence it is that if an elector votes for a State or county office, he necessarily votes on the amendment, for though his ballot contain no reference to the amendment he is counted against it. So that by the terms of the Constitution itself lie is deprived of tlie right to refrain from voting on an amendment if he votes for any State or county office; and the statute.cannot be violative of the Constitution for having this sainé operation and effect. The most that can he said of the statute in this connection is that tinder it it is easier for the elector to vote for the 'amendment than against it, in that to vote against it he is put to the physical exertion of drawing a pen or pencil through the words “For Birmingham amendment,” and he may vote for it without doing this; and of this it is sufficient to say that such regulations have been several' times, and we think correctly, held valid. State v. Black, (N. J.) 16 L. R. A. 769; Dewalt v. Bartley, (Pa.) 15 L. R. A. 771; Ritchie v. Richards, 47 Pac. 670.

And upon the case, our conclusion is that the statute is valid, that by the result of the election held under it the “Birmingham Amendment” became part of the Constitution of the State, and that plaintiff below was not entitled to recover back taxes levied and assessed as authorized by it. So the city court held, and its judgment is affirmed.

Affirmed.