I think that there are two very substantial grounds upon which the defendant is entitled to a rehearing of this appeal:
(1) His Honor, the circuit Judge, should have sustained the objection of the defendant based upon the disqualification of the panel of jurors which tried the case.
(2) The defendant was clearly entitled to a charge of its second request, as it was presented, the modification of which constituted reversible error.
The second ground has, I think, been sufficiently elaborated in the dissent which I have filed. I shall therefore direct my attention to the first ground. *Page 194
It is conceded that the panel of jurors which tried the case was drawn from a list prepared by the proper officers, in December, 1927, of at least one-third of the electors of Charleston County, qualified as such under the Constitution of this State, and that at the time of the preparation of the list the jurors were qualified electors under the Constitution, having been duly registered prior to December, 1927. It is conceded, also, that none of the jurors thus drawn to serve at the March term, 1928, of the Court of Common Pleas of Charleston County, at which the case at bar was tried, had in the meantime, between December 31, 1927, and March term, 1928, been re-enrolled, as it is contended the Constitution required.
There can be no doubt, under Const., Art. 5, § 22, that "each juror must be a qualified elector under the provisions of this Constitution. * * * The concrete question is presented, whether or not a citizen, who was a qualified elector in December, 1927, but who had not re-enrolled at some time during the year 1928, can be deemed a qualified elector when he is presented for jury service in March, 1928.
In Article 2, § 8, of the Constitution it is provided: "The General Assembly shall provide by law for the registration of all qualified electors." Registration is therefore an essential element in the construction of a qualified elector; and, if a juror must be a qualified elector, it follows that he must be an elector qualified by registration in the manner provided by law, both constitutional and statutory.
In State v. Mittle, 120 S.C. 526, 113 S.E., 335, 338, the Court said: "Assuming, then, that registration is essential to the perfected status of a qualified elector, then it is clear that under the section first quoted a juror must be a registered elector, and that he cannot be registered withoutcomplying with the requirements for registration." (Italics added.) Reaffirmed in State ex rel. Munn, 129 S.C. 476,125 S.E., 32.
The requirements of registration are prescribed, under the Constitution (Article 2, § 8, above quoted) by the General *Page 195 Assembly. They are (Section 202, Vol. 3, Code 1922) that the applicant for registration must be a citizen of this State and of the United States, 21 years of age, under no disabilities named in the Constitution, a resident for two years in the State, one year in the county, and four months in the polling precinct. He must have paid his poll tax six months before the election. He must be able to read and write any section of the Constitution submitted to him, or show that he has paid taxes on $300 worth of property, with certain exceptions enumerated.
This applies, of course, to the initial registration of the citizen. It, however, does not confer upon him a perpetual status as a qualified elector, except as to those who were registered prior to January 1, 1898, for Article 2, § 4, of the Constitution provides, as a condition of the continued validity of the initial registration, and "enrollment of [each and] every elector once in ten years." That is as essential as the initial registration, made so by the mandate of the Constitution. The section of the Constitution is as follows:
The qualifications for suffrage shall be as follows:
"* * * (b) Registration. — Registration, which shall provide for the enrollment of every elector once in ten years. * * *"
The general enrollment is provided for in Section 211, Vol. 3, Code 1922:
"An enrollment of persons, not previously registered, and entitled to registration, shall be made annually by the board of registration, until the year 1908, when an enrollment ofall electors shall be made, and thereafter there shall be the same annual enrollment of electors and the same generalenrollment of electors every tenth year, as above provided."
At the session of the General Assembly of 1908 an Act was passed (25 St. at Large, p. 1429), entitled "An Act to provide for the re-enrollment and registration of the qualified electors of this State during the year 1908. * * *" *Page 196
This was manifestly passed to comply with the constitutional requirement above quoted. 1908 was the first year after 1898, in which the tenth-year enrollment was to be had. had. By the Act the supervisors of registration were required "to re-enroll all the qualified electors in this State during the year 1908." Section 1.
At the session of the General Assembly of 1917, an Act was passed (30 St. at Large, p. 49), similar in its title and body to the Act of 1908, providing for the re-enrollment and registration of the qualified electors of the State during the year 1918. This was the second year after 1898, in which the tenth-year enrollment was to be had.
I do not find that a similar Act was passed for the re-enrollment during the year 1928, which was the third year after 1898, in which the tenth-year enrollment was to be had. I do not attach any significance to this apparent legislative omission. I hardly think that there was a legal necessity for such an Act. The requirement appears to have been sufficiently provided for in Section 211 above referred to. It seems to me clear, therefore, that a registration certificate issued after January 1, 1898, was perfectly good until December 31, 1907, and was then practically suspended until the holder became re-enrolled in 1918; and that his re-enrollment certificate issued in 1918 was perfectly good until December 31, 1927, and was then practically suspended until the holder became re-enrolled in 1928.
As is declared in the Mittle case, 120 S.C. 526,113 S.E., 335, 338: "If he shall have been registered after January 1, 1898, he remains a qualified elector until the nextenrollment period" shall have arrived, at which time, to continue his status as a qualified elector, he must re-enroll. Can there be a doubt that if, at any time after January 1, 1928, any one of the jurors, who had not re-enrolled in *Page 197 1928, had presented himself at the polls to vote, his vote could have been challenged upon the ground that he had not been re-enrolled during the period fixed by the Constitution and Statute?
All during the period from January 1, 1919, to December 31, 1927, certificates of registration to persons not theretofore registered were issued over the State. Regardless of when issued during that period, their active energy expired on December 31, 1927. A certificate may have been issued in December, 1927. It expired on the 31st, and the holder ceased to be a qualified elector for voting or jury service until he became enrolled in 1928. The Constitution and the statute declare that enrollment during 1928 is essential. It is conceded that none of the jurors complied with that requirement. I do not see how this Court can disregard the mandate of these laws. It is unfortunate that the situation has arisen — a case of casus omissus, with which this branch of the government is concerned only in a declaration of the law as it stands, without regard to the argument of ab inconvenienti.
It is declared in the opinion of Mr. Justice Graydon: "It is evident from the above provisions of the Constitution and Statute law that a new registration is required every tenth year, but nowhere in the Constitution or in the Statute is provision made for the time of the year at which this registration shall take place. All of these sections must be construed together, to give proper force to each, and only under a strained construction could it be held that it was necessary for every elector in the State to re-register on the 1st day of January of the tenth year in order to perform jury duty, provided he was otherwise qualified."
I do not understand that the defendant contends that it was necessary that the jurors should have re-enrolled "on the 1st day of January of the tenth year in order to perform jury duty." The contention, as I understand it, is that when they were presented for jury service in March, 1928, *Page 198 they had not re-enrolled, as the Constitution and Statute required them to do, in order to be qualified electors, and therefore competent jurors. As the Statute fixes no period during the year 1928, at which this re-enrollment is to take place, I think that there can be no doubt of the proposition that a citizen whose certificate had expired on December 31, 1927, had the whole of the year 1928 in which to re-enroll, but that until he did actually re-enroll he was not a qualified elector or a competent juror. If he should have chosen to defer re-enrollment until December 31, 1928, which he doubtless had the right to do, he must be held to have exercised that option with the concomitant disadvantage of inability to vote or to act as a juror during the whole of the year 1928.
Section 548 of the Code of Civil Procedure of 1922, which directs the preparation by the jury commissioners, in December of every year of a list of the qualified electors for jury duty during the following year, does not at all meet the constitutional objection raised. They could not have done otherwise than to include all who were at that time qualified electors. The question of their continued qualified status in the year 1928 was a matter with which the commissioners were not concerned. The list was no guaranty that between the time of the listing and their presentation for jury duty or voting they might not be disqualified for many reasons, one of which would be the failure to re-enroll in 1928.
In nine out of ten years the procedure adopted has worked no complication or confusion. It is only that they arise at the close of the tenth year, and to obviate them legislative provision might have been, but was not, made. The jury commissioners had the right to assume that one who was a qualified elector in December, and whose certificate would expire on December 31st, would qualify himself thereafter as the law required.
It is suggested that to adopt the defendant's contention would render it impossible to have any jurors during the *Page 199 first three months of the tenth year. I do not at all take this view of the matter. If the citizen were informed of the duty incumbent upon him in order to preserve his highly prized privilege of voting, there is no reason why he could not exercise diligence immediately upon the expiration of the year to have his status restored or continued; nor is there any reason why the General Assembly could not make provision for an immediate general enrollment.
Harsh as it may seem, the situation is just this: The Constitution and the Statute say that the citizen under these circumstances is not a qualified elector until he re-enrolls. It is conceded that the jurors objected to did not re-enroll. They were therefore not qualified electors, and consequently not competent jurors.
I think, therefore, that the petition for a rehearing should be granted.
MR. CHIEF JUSTICE WATTS did not participate.