Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1864-07-07
OPINION OF THE COURT.
To His Excellency:

To His Excellency
JOHN GREGORY SMITH,
Governor of Vermont.
Your communication requiring the |
opinion of the Judges of the Supreme |
Court upon the constitutionality OF
g An Act providing for soldiers voting"
was received In January last, but the con
slant engagement Of all the members OF
the Court on the winter circuit nom
that time until within few days, mas
prevented them from giving the subject
that examination and attention which
its importance demands, at an earlier
day, and delayed our answer to the
present time.-The Act provides general
ly for taking the votes Of all quail
fled electors Of this State in the volun-
teer military service Of the United
States wherever they may be, within or
without the State, on the days provided
by law for the election Of Governor,
Lieutenant Governor, and Treasurer of
the State and for Members of Congress,
and electors of President and Vice
President.
The Act contains various provisions
as to the manner Of voting intended to
secure fairness, and prevent fraud or
mistake and then provides that the bal
lots thus taken, and the voting lists; re-
CURED to be kept by the officers presi-
ding at such elections, shall be returned
to the Secretary of State who shall
return said votes to the General Assem-
bly,, to be counted with the votes cast
in the State for the same officers.
The 18th section of the Act provides
" That this Act shall not take effect until
the Governor submits the same to the
Judges of the Supreme Court, with the
inquiry, Are the provisions of this Act
constitutional 2 and until the Governor
has obtained in writing the opinion of
said Judges thereon and if the said
Judges decide that the provisions of the
Act, or certain parts thereof, are uncon-
stitutional, then the same, or such parts
thereof as said Judges shall decide are
unconstitutional, shall be null and void
and the residue thereof shall remain in
full force and virtue"
The single question submitted to the
Judges, as we understand it, is, as to the
constitutional power Of the Legislature
to authorize The taking Of votes with
out the State, for the officers named in
the Act. Our examination, therefore
has been, and our answer will be, strict
ly confined to that. If the Legislature
can eonstitutionally authorize votes to
be taken without the State, the means
or machinery by which it is to be eff
fectuated, must necessarily be mainly
within the judgment and discretion of
the trainers Of the law, and any objec-
pn1Id y
to the dignity Of a constitutional ques-
ton.
Nor do we understand that any ques-
ton is, or can be made, as to the right Of
any freeman Of this State, who has vol
unteered into the military service Of the
United States, to give his vote within
the State. The absence Of such persons
from the State, in such service, is not
removal, or change Of residence, by
which the right Of voting is lost, but
like an absence from the State upon
journey, or business, is Of temporary
character, and the dOmtcR or residence, con-
tinues within the State, while the person
is actually without the State. The ques-
ton is narrowed, therefore, to the point,
whether the constitution requires the
votes by which the officers named in
this Act are elected to be given s0itht's
this State
Several States have passed laws SINH
lar to the Act in question, which have
been before their respective courts for
examination, and, in ALL it has been Ell
Their expressly or tacitly conceded, that
unless some constitutional restriction
required the voting to be within the
State, it was perfectly competent for the
Legislature to provide that persons le-
gally entitled to vote in the State, might
cast their votes at some place without
the State, and be counted in the election.
We proceed, therefore, to consider the
question, in the first place, as to the
State officers named in the Act Govern
or, Lieutenant Governor, and Treas
urer.
The first provision in the constitution
of this State in reference to elections, is
of representatives to the General Assem-
bly,.
Sec. 7, Of part the second, is as fol-
lows 'In order that the freemen of this
State might enjoy the benefit of election
as equally as may be, each town within
this State that consists, or may consist
Of eighty taxable inhabitants, within
one septenary, or seven years, next alter
establishing this constitution, may
hold elections therein, and choose each
two representatives and each other in
habited town in this State, may, in like
manner, choose one representative to
represent them in the General Assembly,
during the septenary, or seven years
and after that, each inhabited town
may, in like manner, hold such election,
and choose one representative, forever
thereafter"
Sec. g. of part second, provides that
representatives shall be chosen by
ballot by the freemen of every town in
this State on the first Tuesday annually
forever.
1t is conceded, as we understand, that
under the above provisions of the con-
stitution, the meetings of the freemen
for the election of representatives to the
State Legislature, must be neld within
the town, and that itwould not be with
| in the constitutional power of the Leg
islature to provide for their being holden
| elsewhere, or that votes given elsewhere