The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1865-09-14

turn, as it succeeds in obtaining con
troll of the government, will tyranniz
and prescribe Its opponents. The estrug
gle of parties will be on one side, 70
power, vengeance and plunder, anC
upon the other, for the preservation O
life, liberty and property. NOTHING
will preserve us from such u state O
things, If the restraints which our con
stitutions impose upon the madness O
party spirit are hHbltually disregarded
But It has been said that the act in
question, whether constitutional or not
Is obligatory until properly adjudgedt Il
be u nullity, and thatit Is the duty OF
the supervisors and inspectors of elec.
il tions TO execute 1t, instead of under.
i taking to eXpound the constitution.
Such IL doctrine is mt variance with
all we are taught concerning constitu-
tionnl law. None of the eXpounders oi
our constitutions have ever, to my
knowledge, intimated the existence OF
4 any such rule. If the net of tho LCgis-
lature be in violation of the constitu-
ton, II is void from tile time of its pas
sage, and void as to every person, OIL
Ger or not. j do not comprehend how
it can he the duty of the officers of elec-
tiOn to execute an nuncoHstitutional net,
/ and ut the same time the duty of the
courts when sitting in judgement upon
the proceedings of those officers, to adj
Judge the act to be n nullity.
| Suppose u case to come before the
courts involving the validity oft act
in question, and they decide il to he n
nullity; what must their Judgment be ?
The courts no not repeal an uncou-
Stitutional Rct, recognizing II nS in force
until repealed. Ii they decide it to be
Unconstitutional, the Judgment is that
II was never in force as n law, that from
the time of passage 1t was a nullity,
that it was not nj any lime obligatory
ON the supervisors and inspectors, or
any one else-and that II was the duty
of those officers, not to execute, but to
disregard it. They will hold that an
unconstitutional net of the Legislature,
which ista mere nullity from its origin,
| can furnish no protection to the officers
of election, for failing 10 perform their
duty according to the constitution and
the law.
When the Legislature of Old Virginia
in 1861, passed their unconstitutional
acts, by which they attempted 10 force
the people of West Virginia into the
southern Contederacy, We're those acts
obligatory on us until properly ad-
judged to be nullities2 Was it the duty
of the officers of State to execute them,
instead of undertaking to eXpOund the
constitution FOrtunntely, we did not
net on any such principle. We then
held Unconstitutional legislation was
not obligatory on any one.
If 1t be the duty of the supervisors
and inspectors to execute this act until
IT Is properly adiudged to be N nullity,
how can it ever be so adiudged2 You
sue those officers for rejecting good
vote. They nllegc in their defence that
they rejected it pursuant to the act of
the Legislature, and that 1t was their
duty to do so, whether the net was con-
stitutional or not. If the principle
which we are examining be correct, the
defence must be sustNined; and no
question relating to the constitution
alify of the act can arise, because it is
equally the duty of the officers of elec-
tion to execute it, whether it be consti-
tutional or not.
To adopt this principle is to make the
Legislative will practically supreme
upon all llquestiOns. Their acts, whether
constitutional or unconstitutional, will
continue obligatory on the officers of
the State until they are properly nd
Judged to be nullities, and they cannot
be brought to the test of such judg-
ment. Or If they can, ms soon as one
act is adjudged to be Unconstitutional,
they have but TO pass another for the
same purpose, to continue In force till
1t is properly adjudged to be a nullity.
Or they may pass any unconstitutional
act they please, and then pass another
(nO more unconstitutional than the
tirst) to prevent the subject being
brought before the courts for adiudica-
ton, and thus override Mt pleasure any
inconvenient restraint upon their
power.
But it is suggested that the law NAV
be differently construed in different
parts of the State-that the act of Feb
ruRry 25, 1865, may be enforced in one
section anu not in another. True-but
this is n difficulty inseparable from nIl
new Legislation, even that which is un-
rrNN nh
township, or the judge of one circuit,
may cOnstrue an act differently from
the Justice, or judge of another town
ship or circuit, and often do so. The
Board of Supervisors of one county may
take very different view of their pow
ers and duties from tho supervisors
of another county. This is not difli-
Guilty arising exclusively in relation to
supervisors and inspectors of election,
but it extends to all officers acting un-
der the laws of the Slate. Our laws are
new uniformity in their execution is
a very desirable object, but it is an OBJ
ltect that can only be attained by the ef-
feet of time.
There is "a plain way TO avoid such
difficulties i'll the present instances: Let
the Legislature abstain from passing
acts of doubtful validity; or, if they do,
let the officers of election recOllcct that
they must regulate their proceedings
| according to the fundamental law of the
State, and that IL speaks upon the sub
ject OF terms that do not admit of doubt
or cavil.
have snid that in one particular the
Legislature have authority, under the
constitution, to limit the right of suE-
| frage. The fifth section of the third ar
ticl of the constitution provides, that
every citizen of the State, in time of
war, insurrecti0n or public danger, may
| be required by law to make oath that
he will support the constitution of the
United States, and the constitution OF
this State, under pain of suspension OF
his right OF voting. But this is the only
outh which the constitution allows the
Legislature to require of n voter, rs the
condition upon which he mRy exercise
the right of ofsudrage; and the provision
of itself negatives the right to require
such an oath rs they have seen tit to
impose. Besides, this right exists only
in time of war, insurrection or public
danger; and law for that purpose
must necessarily expire, by force of the
constitution, when the war, insurrec-
tion Orpublic danger, which alone could
authorize IL, has ceased in fact toSeXist.
There are other provisions of the con-
stitution which regard nS irreconcila-
| BILE with the act of February %, 1865
but do not wish, nor can think II
| necessary for me to extend this opinion
by any argument in relation to them.
In conclusion, gentlemen, it is my
opinion that the second section of the
ls0-called law OF February %, 1865, is
Unconstitutional and, therefore, void;
and as you cannot obey the section and
the constitution both, my advice is to
lobey the latter. a f' fa ID
With great respect,
a-aHl DANIEL LA8IB.
To DfessrS. g. W. FTdnshein, Thomas
II b. jShdEicrOSS, W, A. BeIT.yI,iLL, JOIN