The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-03-26
POLL TAX CLAUSE.
Opinion by Hon. George Rountree
Adopted and Promulgated by the
Democratic State Executive Com
mittee.

Hon. F. NJ. Simmons, U. S. Senator,
| Washington, D. G.
| Dear Sir: l am in receipt of your
letter of recent date requesting my opin-
ion as to the validity of that provision
of the present election law, Acts 1901,
chapter SO, section IS, requiring, as
condition precedent to the right to reg
| lister and vote. the applicant to show
| that he had paid his poll tax, on or be-
fore the list of May, as applied to the
general election in November, 1902.
| After giving the matter careful and
attentive consideration, l have no hest
tation in saying that. in my opinion, the
act is perfectly valid.
| The only suggestion that have heard,
or can imagine, against its validity is
| that, as the suffrage Amendment requir-
| ing the payment of the poll tax on or be-
fore May 1st in the year in which appli-
cant offers to vote does not go into
effect until July 1st 1902. there was no
valid law requiring the payment of that
| tax on May 1st, 1902 and to give effect
| to that constitutional amendment in this
respect at the November election will be
obnoxious to the objection of passing an
ex post facto law, or impairing vested
rights.
This is plausible, but not sound. The
election law was ratified and went into
effect on March 18th, 1901, by the terms
| of which all persons, otherwise qualified,
desirou of voting at the next general
election were notified that they could not
do so unless they paid their poll tax on
or before May list, 1902.
The cardinal objection to an ex post
facto law is that, under it, a person is
punished for doing an act not criminal
when done, and which act he had no
possible means of knowing would be pun
ished: and a law is not ex post facto
| merely because retrospective-it must,
in addition to being retrospective, i'm
pose punishment
Now, it is arguable that this section
OF the election law is valid under the
old Constitution, as the Constitution it,
self requires the payment of a poll tax,
though not as a condition precedent to
the right to vote; it is also arguable
| that the old Constitution. article 6, was
repealed Immediately upon the adoption
of the Suffrage Amendment by the peo-
pie at the August election in 1900, leav-
| ing the Legislature free to prescribe any
qualifications, within the restriction of
the Fifteenth Amendment. it saw fit, but
| these propositions may be admitted to be
doubtful, and therefore waived.
According to accepted legal theory
there is no right to vote except that
which is conferred by positive law, con-
stitutional or statutory, and the right,
such as it is, is not o civil right, but a
mere political privilege which is given
or withheld in accordance with prevalent
views of public policy. -s--t. ..a.s
Prof. Pomeroy says: The voter
possesses O. mere privilege; that taking
it away or what is the same thing, re-
fusing to confer it. does not impair a
right. and cannot be regarded as a pen
atty Or punishment
/ Pomeroy Const. Law, Sec. $50.
Cooley Const. Linn. 18th. ed.) p. 752.
If this be the true view, and it is upon
this ground alone that the exclusion of
women and children can be defended, then
the withdrawal of the privilege. or right,
to vote from any person or class of per-
sons, by the sovereign power. cannot be
an impairment of a vested right or the
enforcement OF an ex post facto law. for
the simple reason that no right has been
has been change in the views of the
law making power as to what is best
for the State, that is ALL OF course. the
change must be made in a lawful man.
ner-by the power competent to make
it; as here, by the Constitutional Amend
ment.
/ do not deem it necessary to elaborate
the point, because the question whether
the State can lawfully deprive a man of
the right to vote because of an act done
previous to the passage of the law has
been decided
In Wainwright VS.. State Us Ala 1922
81 Am. Rep. 479. in a very able opinion
by Somerville, j., it is decided that
man who was convicted of larceny in
1871, and who was not thereby deprived
OF his vote might be punished for voting
in 1884. when the Constitution of 1875
had gone into effect, and which provided
that no person should vote who had
been convicted of larceny.
The Act was held neither to impair a
vested right nor to be ex post facto
In Garrett VS.. Weinberg, 81 S. f. Rep.
BAL, 344, McIver, c. j., says: I'VE are of
the opinion that the qualifications of an
elector may, at any time
be changed by the sovereign power of the
State-the people-speaking through their
regularly ordained constitution, when
ever it is deemed expedient. for the pub
lie welfare that such change should be
made without any violation of the ex
post facto provision of the Constitution
of the United, and without divesting any
vested rights of the citizen.
And Mr.. Freeman, the editor of the
American Decisions and American State
Reports, in an elaborate note to the case
of People vs.. Hayes, 81 Am. ST. Rep. 572.
$50. on ex post facto laws, says:
I'm determining the qualifications of
voters, the Legislature may, we think.
exclude persons whose criminal cbarac-
ter has been established, by their convic-
tion of crime, though when their crimes
were committed such commission did not
involve their exclusion from the right to
exercise the elective franchise, but as
this franchise in the absence of Con-
stitutional provision comforting it, is
meres privilege to DC granted or with
held from persons innocent of crimes,
because OF sex CIR of any other reason
that may appeal with success to the law
makers: Murphy V, Ramsey, ia u. S.
43; shepherd VS.. Grimmett Idaho 1929