The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-07-06

this ect tnHicts no penalties tt enacts
no aew punisafeent for sfeason. or any
other crime Il does not propose to
punish criminals; but only deprives
some Of the citizens Of the State Of q
privilege. Isis no penalty or punish 4
ment in the legal meaningof the words.
10 prevent S man from voting fit is
then every minor Is undergoing pun
shment until be arrives At age. Every
citizen who removes from Fayette 4
shelby .ceansy is punished six month
ior his removal, and every foreigner az
risine in the United States IL subjected
% penalties and punishmenis for f.
seara The elective franchise IS not
even q vested right, but is a mere naked
privilege which the supreme law may
restrict At pleasure
secondly. Il IS insisted that this set
Il in violation Of the 9th section Of tho
BIZ Of Rights, which declares among
other things that no freeman shall be
dissolved Of his lbesties o. privileges
but By the judgment Of his peers or the
law Of the lan6 The Argument Is
that voting is q privilege Of which q
man cannot be deprived. except By the
Judgment Of his peers or the law Of the
land This is certainly correct But is
not this act the law Of thelandG 1t
is a general Law applicable 20 al the
citizens Of the State, (Sec /, Mesgs
Dig, 2 SIS, 2 Yerg. goo, Consultation
Art u. Sec 4 law providing that
A shall not yoge is y0id. It is not the
Law Of the land. But a general Law
applicable to all the citizens Of the
State, is the law Of the land by
which 8 man may be deprived Of bis
privilege Of voting. m goa
Thirdly. Its argued that The act is in
conflict with section . OF the Bill OF
Rights, which declares that elections
shall be free and equal I"
IL Is assumed mat, under this Sec
ton, If any free white man, over the
age Of d years, etc, is excluded from
the privilege Of voting, an election can
not be ''free and equal But Is this
the meaning OF the section / think
not The meaning Is that every legal
" qualified voter must have free and
equal chance with al others Of voting
Hence any enactment providing that
one class OF voters shall have the pref
erence in approaching the ballot box,
or that voters shall vote in q particular
way, presenting test for one legally
qualified voter which Is not imposed Ga
others, OF any other law Of q like ma
ture would be unconstitutional and
void So also certain proceedings Of
those controlling or assuming to con-
troll an election, such as sending armed
forsss 10 intimidate voteTs-placing
men around the polls to take down the
names Of those who vote IN q certain
Way--directing that the ballots Of those
voting in a particular way shall be of q
certain form, size or. color, and that
those who do not offer ballots Of aaat
particular description shah be mark
ed These and like proceedings pre-.
vent an election from being free and
equal, and an election 50 held is void.
But il is particularly urged in this
connection that the law conflicts with
the 18th section Of the Bill Of Rights, be
/ cause il is provided by the pFoviso Of
the 9Th section Of the act shat no man
of publicig known Union sentiments
shall be required 70 make cath when
be applies for the certificate, while
others may be 50 required IL viii Be
observed that by said section no person
Is voter until he obtains a certificate
After obtaining certificates all are on
an equal footing and subjected to the
same test, if challenged, by section o.
the act All having certificates are 70
tens. and have s free snd equal chance
Of depositing their ballots.
On examination Of the act, however
It will be seen that no test oath is re
quired of any applicants for registra
ton. Before issuing q certificate the
clerk must be satisfied by proof, under
oath. that the applicant is legal voter
This should ordinarily be shown by The
oaths of third persons, but may, / sup
nose. il the discretion of the clerk, bs
shOwn by the oath Of the applicant
himself But no particular oath Ii
prescribed Is q test for any applicant
/ The clerk is only directed not 70 require
the cath Of a publicly known Union
man. il would be entirely unnecessary
70 do 90, after the fact that he has beer
publicly known as q Union man, hai
been established, as it should be, b
the evidence Of third persons. Blu
even il this provision were void, i
would not invalidale the remainder O
the 9th section.
Fourthly. It is urged in the peti
ton. though not in the argument, thai
the Legislature could not confer on tbs
county court clerk the power TO deter
mine the qualifications Of voters, be
cause that would be conieEring Judicial
powers on said officer, which would be
In conflict with art ., sec, ?, of the
Constitution. As this position has moi
been taken in the argument, 1t IS only
necessary 10 say that Il l. not tenable
The county court clerk is neither ia
dicial, legislative or executsse officer
in the meaning of that article of the
Constitution. lie is ministerial Of
fieer. Neither is the determining q
the qualifications of voters q Judieiai
function; nor are Judges Of elections
part Of the Judicial department Of tbs
government
But il was urged IN the argument
that It is inexpedient 70 vest the pow
or in the clerk. because he might Illegal
Is use itIn depriving 3 man Of the priv
ilege, and leave him without remedy OF
redress Il is true a clerk might lie
gslly refuse an application, as might
) the Judges of Election, or any othel
+ officer OF body ia whom the powe,
might be vested But would she ap
plicant be without remedy /? Ceriainiy
; not Has not the relator in this case !
remedy, which be is now vigorously
, pursuing Nor IS the mandamus thl
only remedy. A suit for damages mai
be brought against the clerk for aa il
legal refusal 70 Issue certificate
/ have thus alluded, az some length
to eli the objections % the lew, none o
which appear 10 me 10 be well taken
and ] therefore hold that the act is
valid and constitutional Law. and thai
IL must be obeyed