This was a statutory action under the provisions of section 1916 R. G. S., 3049 C. G. L., to exclude certain lands from the corporate limits of the Town of Lake Maitland.
Under the provisions of this section it is incumbent upon the petitioners to show that the incorporated town contains less than One Hundred Fifty (150) qualified electors before the Circuit Court acquires jurisdiction to proceed further and to enter judgment in the premises.
It is contended here that the appellant did not meet this burden of proof. *Page 584
The petition was filed on January 30, 1931. The record shows that the next preceding election held in the Town of Lake Maitland was held on March 1, 1930. There is no showing in the record that an election would be held in the Town of Lake Maitland within four weeks after the petition was filed.
The only question which we are required to determine here is whether or not the petitioner in the court below made the necessary proof as to the number of qualified electors within the Town of Lake Maitland to give the Circuit Court jurisdiction to determine whether or not the lands involved should be excluded.
A duly authenticated list of the registered voters held to be qualified to vote at the last general election held on March 1, 1930, prior to the filing of the petition was offered in evidence by the Town and was not admitted. The Clerk of the Town testifying, after refreshing his memory from this list, testified that there were names of Seventy-seven (77) persons on the list who were exempt from the payment of poll tax and that there were thirty-nine (39) of those on the list and not exempt who had paid the poll tax between November 1, 1930, and January 30, 1931, and that one of those exempt had died. This apparently led to the conclusion that there were only One Hundred and Fifteen (115) qualified electors in the Town at the time of the filing of the petition. This conclusion was not warranted. The list shows One Hundred and Sixty-six (166) names of qualified electors on March 1, 1930, and the evidence shows affirmatively that list decreased by only one.
We must read the Constitution and the statute authorized by the Constitution together to determine what is a qualified elector. Section 1 of Article VI fixes the general qualification of qualified electors. Section 2 of Article VI authorizes the legislature to provide for the registration of all electors. Section 8 authorizes the legislature to make the payment of capitation tax a prerequisite for voting. *Page 585
Section 1836 R. G. S., 2946 C. G. L., fixes the qualification of electors of municipal corporations, where not otherwise fixed, by special statute. This section, amongst other things, provides, referring to persons qualified, "and shall have paid his poll taxes as provided by law and as prescribed for state elections."
Section 708 R. G. S., 910 C. G. L., authorizes the assessment of poll tax and requires the same to be collected when taxes on property are collected. Under this section of the statute poll tax for 1930 did not become delinquent before April 1, 1930.
Section 215 R. G. S., as amended by Chapter 8583 Acts of 1921, 228 C. G. L., makes the payment of poll tax on or before the fourth Saturday preceding the day of election for the two years next preceding the year in which such election is held a prerequisite to the qualification of an elector against whom the poll tax is lawfully assessable. Thus, the payment of the tax is required if assessable and it is immaterial whether the same is actually assessed or not.
So it is that the payment of capitation or poll tax in the manner or within the time prescribed by law is prerequisite to being a qualified municipal elector. The petitioner here failed to show affirmatively that any of those persons who were qualified electors at the time of the municipal election on March 1, 1930, and against whom a poll tax was lawfully assessable had prior to the date of the filing of the petition become disqualified by reason of the non-payment of poll tax at the time when the same was required to be paid.
Unless an election should interevene such electors would not have become disqualified on account of the non-payment of poll tax until the 1st day of April, 1931, when the same became delinquent. If an election did intervene such electors would become disqualified by reason of the non-payment of poll tax if the same was not paid on or before the fourth Saturday preceding the date of the election. Therefore, *Page 586 it is apparent that the petitioner did not meet the burden of showing that there were less than One Hundred and Fifty (150) qualified electors in the Town of Lake Maitland at the time the petition was filed.
It is not necessary for us to determine whether or not the list proffered in evidence was a document entitled to be admitted in evidence.
The decree should be reversed with directions for further proceedings not inconsistent with the views here expressed. It is so ordered.
Reversed.
WHITFIELD AND TERRELL, J.J., concur.
ELLIS AND BROWN, J.J., concur in the conclusion.
DAVIS, J., concurs specially.