The Athens post. [volume] (Athens, Tenn.) 1848-1917, 1859-11-04

Under the pr6Nisions Of the touch arti-
Gle of the constitution, as guarded and |
secured in this Instance by the filth 500
ton of the tenti1 article, the voters bf the
Hamilton fraction had the right 20 vote
for one or the other of the contestants
The trainers of the constitution, looking !
upon the right of suffrage as sacred and
Invaluable, hayc declared that no, quail
fed voter shall be. excluded from its en-
joyment, except on conviction of infamous
crime, and that he shall be privileged
from arrest or summons in attending, go
Ing to. or returning from elections in all
cases, except treason, felony or breach of
the peace. The standard Of valuo thus
stamped by the trainers of the Cohstitu-
ton upon the right of suffrage, affords n
rule by which our legislation on the SUBJ
iect should be construed. and by which
we ought to consider and determine this
controversy. Ii will not be denied but
that the various provisions of the Code.
regulating the manner of voting and de-
filming the duties of the Sheriff and 9th.
err officers, are i'm the main merely di-
rectory. and should be construed most
literally to sustain. not to impair. the
validity of elections. 1t is too well set
tied to admit of debate that every pre-
sumption shall be made in favor of this
validity, and hence il is presumed that
persons acting as returning officers, are
legally authorized to do so until the con.
trdry is proven. The provision of section
$40 of the Code. requiring the Sheriffs of
old counties to hold the elections for
Governor Congressman aud members of
the General Assembly. in the Fractions
taken OFT to form new counties. is merely
directory, not imperative or peremptory.
for. by section S43, it is provided that if
the Sheriff fails to attend in such case.
any Justice of the peace present, or If no
justice be present. any three freeholders
may perform the duties of sheriff: and
in case Of necessity may act as officers
and inspectors. Mr.. Cushing. in his able
treatise on the law and Practice of Iegis-
lative Assemblies, page I3. in discussing
the duties of returning officers in con-
Quoting elections, says: THAT when the
law is merely directory. no neglect, or
mistake. or even improper conduct or ir-
regularity on their part, will be fatal
though frequently made punishable by
law, if in other respects. there has been
a substantial and good election" He
further says. on page ~, that whether n
neglect of the acquisitions Of n directory
statute will be fatal or not to the pro-
ceedings, does not depend so much upon
the nature of the neglect. as upon its in
fluence in producing the result of the
election" No one will say that the
failure of the sheriff of Hamilton coun-
ty lad the slightest Influence in produc-
ing the result of the election, and aside
from this there is Substantial and good
election" 1t can make no difference
whether the failure resulted from neg
~. -
tIonahy embraced by the above principles
of law. and cannot invalidate the cleo
ton. 1t may be well argued in view of
the liberal rules of construction above
mentioned, that there was. substantial
compliance with section SIS of the Code
above referred to.
But the undersigned do not admit that
there was in fact failure on the part of
Mr.. Conner to do his duty in this matter.
It is satisfactorily proved 10y the positive
testimony Of Mr. Bonner. and the some
what indefinite yet contirmatory tcSti-
mony of Mr.. Rankin, that Conner YER
bally deputized Rankin to hold the cleo
ton for him. We think that the weight
of proof will fully sustain this position;
but it cannot be controverted but that
! Mr.. Conner thought that he had deputised
| Mr.. Rankin. and that the deputation had
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mako i his dntv 10 hold II II viii nnost
certainly he conceded that Nv RanL;n
could have held If "a sneciol dan,,tv nm.
der what was said to him hv Mr Conror.
if this he admitted the law will nrasun,e
that he held II in inst tho cborantor ho
should have done. unless tbere i nroof
that he rnpudiated that character before
the election. II would bn ,,onstrous to
ALLOW Rankin boIdin, t,,o val, e. 70
he intended tn act mill tba event ,vos