The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1865-09-04

/ dlctG CFCUu y UeSt "a
DEAR SIR: Our county election will
| take place Oh the 18th inst. At the in
stance of MANY of our citizens, and as a
guide to the officers conducting the elec
tions, request your opinion rs to the
effect of the law of West Virginia, i'll re-
gard to the qualification OF voters, which
is regarded, by some, as unconstituh" "nal
and void, because it is not expressly con-
tained in the Constitution.
Very Respectfully, Yours, &c,
JOEL MCPHERSON,
CLERK and Recorder Of frveabri,r County
LEwIsBURG, GREENBRIER Co, W. VA,
August 18th, 1865.
To Col. Joel M7Pherson, Clerk and Recorder
of GreeRbrier County:
DEAR SIR: You ask my opinion, as TO
the obligation of the law of West Vir-
ginia, in regard to the qualification of
voters, which law (you add "is regard
ed, by some, as unconstitutional aud
void, because lit is not contained in the
Constitution"
Article Sd, of the Amended Constitu-
tion of West Virginia, does, it is true,
present the general qualification and
qualification of voters How far it may
be competent to the Legislature, during
a time of peace, or time of war, <and
especially during the latter,) TO impose
additional qualifications or disqualitica-
tions for the public safety, is Il question,
to say the least, of the gravest import,
which it will be time enough to consid'
er, should it ever be regularly and judi
cially brought before me The Legislature,
by an act passed Feb. 25, 1865, thought
proper to create disqualification, and
to prescribe test, not enumerated, it is
true, in the Constitution. By a previ-
GUS act passed 23d June, 1863, it like
wise declared, that mo person elected or
appointed to any Office of trust, civil or
military, should exercise tho authority
or discharge the duties of the same,
without taking the oath therein pre-
scribed" The wisdom of these laws, it
is not for me to question. They arc pre-
sumed at least, to be constitutional
Their constitutionality or unconstitu-
tionality cannot be informally and judi
dicially determined, even by member
of the Judciary-much less by super
visor or Inspector of elections. To hold
that these officers of themselves can uul
lify a solemn act of the Legislature, upon
constitutional grounds, would be to en-
courage resistance to the law, and to
clothe them in fact with the highest pos
sible function Of judicial power. Anoth-
er objection to it is, that under the prac-
tical exercise of such Il privilege, not
only might the same law be differently
construed in different counties, but ev-
ell in the different parts of the same
county. Thus, sir, in your elections, on
Thursday next, the act of February,
1865, might be construed in one way at
Lewisburg, in another way at the White
Sulphur Springs, and perhaps, at Frank
ford, by different rule of construction,
altogether, which would lead, suppose,
to great confusion.
Ny opinion is, therefore, that the law
in question. whether constitutional or
unconstitutional, is obligatory, ut least
until properly adjudged to be q nullity,
and that it is the duty of the supervisors
and inspectors of elections to execute the
law as it is, instead of undertaking to eX-
pound the Constitution.
dIlt why iSoHSScAuiAy JONASt SNS''
N. HARRISON.
Our respect for the gentlemen between
whom the above correspondence took
place, not less than the grave import of
the matter therein presented, prompts us
to cheerful compliance with the request
to publish it in our columns. We cannot
do so, however, without at the same
time entering our solemn protest against
some of Judge HARRlsoN's conclusions.
And while we should certainly render to
any official opinion of his, all the respect
due t" his ability, learning, and high Off
cial position, we feel that, as Il citizen,
his opinion is entitled to no more regard
than that of any other gentleman of like
good sense and standing in his profes-
sion Had the Judge been content to say
he could not decide the constitutional
question before it was regularly raised III
his court, no exception could have been
taken to his answer But. when he not
only fails to answer the question asked
him, but travels beyond the record, to
lecture other officers of the State, on
their duties under the Constitution, and
to decide for them their powers and func-
tions, we think his letter open 60 criti'
cism and condemnation We think, in
truth, the Judge might as well have de-
cided the question submitted to him by
Col MCPHERSON, as the question he does
decide, and which latter question is qnite
as likely to be made before him officially,
as that which he declines passing upon
All lawyers worthy of their profession
know full well that the laws of the land
are graded in dignity, and binding force
aud that in the following order:
lst. The Constitution of the United
States.
2nd. Treaties made in pursuance there.
of.
3rd Laws of Congress made in pur.
saance of the Constitution.
4th. The Constitution of the States.
5th. And lastly, and least Of all in dig
nifty and binding force: The Statute:
enacted by the Legislatures Of the States
Coming then to our own State mat
L.. tho No,sf;fnt;np nf fba Gfafa M