Nashville patriot. [volume] (Nashville, Tenn.) 1858-1860, 1859-10-24
the election would be invalid eyen in that

the election would be Invalid even IN Lnat
state of fbe facts - : = = -
Under the provisions of the fourth article
of the Constitution, as guarded and secured
in this instance by the fifth section of the
tenth article. the voters of Hamilton fraction
had the right to vote for one or the other OF
the contestants. The trainers of the Consti-
tuition, looking upon the right of suffrage as
sacred and Invaluable. have declared that no
qualified 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, going to. or
returning from elections in all cases, except
treason, felony. or breach OF the peace. The
standard of value thus stamped by the franz
ers of the Constitution upon the right of
suffrage, affords rule by which our legisla-
ton on the subject should be construed, and
by which we ought 10 consider and deter
mine this controversy. II will not be denied
but that the various provisions of the Code,
regulating the manner of voting and defining
the duties of the sheriff and other officers,
are in the main merely direcI DRY, and should
be construed most literally to sustain. not to
impair, the validity of elections. 1t is too
well settled to admit of debate that every
presumption shall be made in favor OF this
validity, and hence it is presumed that per-
sons acting as returning officers. are legally
authorized to do so until the contrary is
proven.
The provision of section $40 of the Code.
requiring the Sheriffs of old counties to hold
the election for Governor Cungressmen and
and members of the General Assembly, in
the fraction taken off to form new counties, is
merely directory, not imperative or peremp-
tory for, 10y section S43, it is provided that
if the Sheriff fails to attend in such case, any
justice of the peace, or if no justice be pres
ent, any three freeholders may perform the
duties of sheriff; and in case of necessity may
act as officers and inspectors. MIR. Gushing
in his able treatise on the Law and Practice
of Legislative Assemblies, page 10, in dis
cussing the duties of returning officers in
conducting elections, says: THAT when
the law is merely directory, no neglect or
mistake, or even improper conduct OF irreg-
ularity on their part, will be fatal though
frequently made punishable by law, if in
other respects, there has been sub taniial
and good election He further says. on
page "A, that whether neglect of the re-
QUESTIONS of directory statute will be fatal
or not 10 the proceedings, does not depend
so much upon the nature OF the neglect. as
upon its Influence in producing the result OF
the election" No one will say that the fail
ure of the sheriffs OF Hamilton county had
the slightest Influence in producing the
suit of the election" and aside from this
there is Substantial and good election"
1t can make no difference whether the failure
resulted from neglect or mistake Of duty,
il is most uDqaestionably embraced by the
above principles of law, and cannot invali
date the election. 1t may be well argued in
view of the liberal rules of construction
above mentioned. that there was substan-
tial compliance with section S43 of the Code
above referred to.
But the undersigned do not admit that
there was in fact failure OH the part of Mr..
Conner TO do his duly in this matter. 1t is
satisfactorily proved by the positive testi-
mony of Mr.. Conner, and the somewhat in
definite yet confirmatory testimony of Mr..
Rankin, that Conner verbally deputiZed
Rankin to hold the election for him. We
think that the weight of proof will fully sus-
tain this position; but il cannot be contrO-
verted but that Mr.. Conner thought that he
had depuiZed Mr.. Rankin aud that the
deputatIon had been accepted. They had a
conversation on the 2Sth dav of June, 1859.
in which Mr.. Conner said he wanted TO do
just what was ight and according to law,
and if it was his duty to hold the election, he
appointed him (Mr. Ranking his special
deputy. 1t appears that after this Mr.. Con-
ner advised with lawyer as to his duty. and
sent word by Mr.. Stringer, candidate for
representative in Hamilton county proper. to
Mr.. Rankin, requesting or directing Mr..
Rankin to go on and hold the election and
send him the returns. 1t does not appear
that Mr.. Rankin declined to accept the d, pu-
tation made in the first conversation, or that
he sent any word back to Mr.. Conner in re-
ply to the message Mr.. StringeF delivered, if
Mr. Rankin declined or refused TO accept the
deputatio1, 1t was not communicated TO Mr..
Conner, or known to any other person until
after the day of the election.
In this view OF the facts it can make no
difference in what character Mr.. Rankin held
the election; it will be intended in legal con-
temptation that he held it in the way that
the law would make it his duty to hold il.
1t will most certainly be conceded that Mr..
Rankin could have held il as special deputy
under what was said to him by Mr.. Conner;
il this be admitted. the law viii presume that
he held il in just the character he should have
done, unless there is proofthat he repudiaied
that character before the election. 1t would
be monstrous to allow Rankin, holding two
relations TO the election, to remain silent
to how he intended to act until the event was
over. and then permit him to elect. Such
a thing would not be tolerated in common
agencies about trivial matters, much less
would it be in matter so important as the
validity or invalidity of a popular election.
In the opinion of the undersigned there is no
light in which the facts and law can be view
ed that will authorize this body TO decide
that the election in the Standardization
should be declared invalid, and the free voters
of il DISTINGUISHED.
The undersigned have thus stated their
views at length upon the various questions
involved in this controversy, and they offer
the following resolution as embOdying their
conclusion, and ask that it be adopted
ResolUed by the Senate, That John A. MINIS
is not entitled to a seat on this floor ms Sena-
tor from the Sth senatorial district but that
VIM. III. Tibbs was lawfully aud constitution
ally elected at the late election in this Stale,
Senator for said Sth district, and is entitled,
as such Senator, TO Il seat in this body.
JORDAN STOKES,
j. W. RICHARDSON.