Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1864-07-12

Governor Of Vermont
Your communication, requiring the opinion
Of the Judges of the Supreme Court upon III,
consttutlOnaity OF " An act providing tor sol
diers voting" was received in January last, bu
the constant engagement Of all the members o
the Court on the winter circuit from that tim
until within few days, has prevented them from
giving the subject that careful examination and
attention which its Importance demands, at an
earlier day, and delayed our answer to the pres
ent time The act provides generally for taking
the votes of all qualified electors Of this State il
military service OF the United States wherever
they may be, within or without the State Oh
the days provided by law, for the election Of
Governor, Lieutenant Governor, ard Treasurer OF
the State. and for members Of Congress, and
electors OF President and Vice President.
The act contains various provisions as 10 tho
manner Of voting, intended to secure fairness,
and TO prevent fraud or mistake, and then pro.
vides that the ballots thus taken, and the voting
lists, required to be kept by the officers presld
ing at such elections, shall be returned tO the
Secretary of State who shall return said vote
to the General Assembly, to be counted with the
votes cast in the State for the same officer. ., :.
The 18th section Ol the act provides " That
this act shall not take effect until the Governor
submits the same 10 the Judges Of the supreme
Court with the Inquiry re the provisions 5i
| this act constitutional and until the Cover
nor has obtained In writing the opinion Of sald
Judges thereon and if the said Judges decide
/ that the provisions of this act, or certain parts
/ thereof, are unconstitutional, then the same, Or
such parts thereof az said Judges shall decide
are unconstitutional shall be null and void and
the residue thereof shall remain io full forco
and virtue.
The single question submitted 10 the Judges,
as we und rstand 1t, is, as tO the constitutional
power of the Legislature to authorize the taking
OF votes without the State, for the officers named
in the act. Our examination, therefore has been,
and our answer will be, strictly confined 70 that.
II the Legislature can cOnstltutionally authorize
yOt,s 10 he taken without the State, the means
or machinery by which 1t is to be etiectuated,
must necessarily be mainly within the Judgment
and discretion of the trainers OF the law, aud
any objection 10 such means, could hardly Iis3
TO the dignity Of a constitutional question.
Nor DO We understand that any question Is,
or can be made, as u the right Of any freeman
of this state, who has volunteered into the mi.
ltary service of the United States, to give hIs
sons from the State, IN such service, is no, a re-
remoyal OF change OF residence, by which the
right Of voting is lost, but like an absence from
the state upon journey, OF business Is Ol
temporary character and the dOmidi or resi-
deRo, continues within the State, while the per
son is actually without the State. The question
is narrowed, therefore, tn the point, whelher the
constitution requires the votes by which the Off
GERS named in this act are elected, 70 be given
ioithin This Nafei
Several States have passed laws similar to the
act in question, which have been before their
respective courts lot examination, and, IN all, Il
has been either expressly or tacltly conceded,
that unless some constitutional restriction re
quired the voting 10 be within the State, it was
perfectly competent for the Legislature to pro
vide that persons legally entitled 10 vote 10 The
State, might cast their votes at some place with
ont the State and be counted IN the election
We proceed therefore, to consider IN the ques
ton, IN the hrs place, as to the State officers
named in the act, Governor, Lieutenant and
Treasury.
The first provision in the constitution OF this
State in reference 10 elections, Is Of representa-
uyes to the General Assembly.
SEC. 7, of part second, Is as follows -" 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 con-
est, OF eighty taxable inhabitants, within one
septenary, or seven years. next alter establishing
tins constitution, may hold elections therein and
choose each two representatives and each other
inhabited town in this State, may, III like man.
ner, choose one representative, to represent them
IN the General Assembly, during the septenary,
or seven years and alter that, each inhabited
town may, In like manner, hold such election,
and choose representative, forever thereafter
SEC. s, of part second provides that represen-
taiiyes shall be chosen by ballot by the treemen,
of every town in this State On the first Tuesday
annually forever.
IL is conceded, as we understand, that under
the above provisions OF the constitution, the
meetings of the Teemen for the election OF rep
resentatiyes to the State Legislature, must be
he'd within the town, and that it would not be
within the constitutional power Of the Legisla-
ture to provide or their being holden elsewhere,
OF that votes given elsewhere than In such meet
Jog, could lie received. Hence, tho act in ques
ton does not provide for taking the votes OF the
soldiers from this State, for town representatives
Sec 10, part 2, is as follows -" The ireemon OF
each town shall, on the day Of election for
choosing representatives to attend I 9 General
Assembly, bring IN their votes Tor Governor,
with his name lalrly written, TO the constable,
who shall seal them up, and write ON them
. Votes for Governor, and deliver them to the
representative chosen to attend the General As
sembly. And at the opening of the General AS
sembly there shall be a committee appointed out
of the Assembly, who, having duly sworn to the
faithful discharge OF their trust, shall proceed
to receive, SORT and count the votes for the Gov
ernor, and declare the person who has the major
part OF the votes, to be Governor for the year
ensuing The Lieutenant Governor and Treas
urer shall be chosen in the manner above direct
ed
This question does not, m terms, require that
the voting Tor State ohcers shall 10 IN the same
place, or meehng, at which the representative Is
chosen, but il that is it's fair spirit Al meaning.
it is equally imperative The fundamental law
of the State must not receive any strained or
forced construction, or be made to yield by rea-
son of any peculiar exlgency in public Or private
matters, but must be kept and preserved at all
times, the same Uniform test aud guide, lor the
citizen, US well as every department OF tho gov.
ernment established under 1t. Something may
be learned Of the understanding OF the trainers
of the constitution, ald OF the people who
adopted it, by brlei reference to the history Of
the adoption OF the constitution, and The early
legislation under it..
The first constitution o. this State was formed
by convention OF delegates from the several
towns, which met at Windsor on the ID day Of
July, l777 This was just at the time OF the
invasion IRON the North OF the British army,
under Burgoyue, which caused aroat alarm and
confusion among the lnhpbltants, especially in
the western part Of the State, where many
abandoned their homes. Pho disturbed oondi-