The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1865-09-15

February 25, 1868 20 be Obeycu by
Supervisors and inspectors of EIec-
lions.
SEPTEMBER 5, 1855.
To HIS ErceElcacy GOve0,or Il. I. Bore
man:
In the communication of James H.
Hinchman, Recorder of Logan county,
which you submit for my Official opin-
ion and answer to the questions therein
contained, the writer states that certain
persons elected to office in Logan Coun-
~ present themselves before him, as re-
corder, for qualification, proposing to
take the oaths to support the Constitu-
ton of the United States, the Constitu-
ton of the State of West Virginia, and
the oath of office; but declining to take
the oath prescribed for officers by our
Act of November 10th, 1868; and desires,
through you, my official opinion, rs to
the cOnStitutiOnality of said act.
In answering this, I desire also to an
Swer the communication of a. P.White,
an officer in Hampshire county, asking
! if section 2, of chapter SO, Acts of 1865,
prescribing an oath to be taken i'll GER
tain cases by voters, is, or is'not, cr
| post Jdcto, and in violation of Sec. of
| Art. II, and Secs. l and V of Art. III of
our Constitution.
| These are acts ofthe Legislature; are
| part of the law of the State; and are
! PRESUMED to be constitutional, and must
be observed and enforced, unless and
until, they shall be adiudged and de-
cided to he unconstitutional by q C0tnf
| of competent jurisdiction, in u case reg
ulurlV and properly brought before il.
| II is not competent for the Recorder of
/ Logan county, or the supervisor and in
| Spectors of elections, or any officers or
citizens, other than the regular judicial
authorities, TO override and disregard
| these, or other laws, because, forSoOth,
| he or they maybe Of opinion that the
laws are unconstitutional. And as CO.
! gently argued by his Honor, Judge n.
| Harrison, of Lewisburg, III his recent
communication to the Clerk and Re
| hold that these extraordinarily officers
of themselves, may nullify sol
cmn acts of the Legislature, upon
! constitutional grounds, would be to
encourage resistance TO the law, and to
clothe them, in fact, with the highest
possible functions OF judicial power;
and under the practical exercise of
such u privilege, not only might tile
same law be differently construed
| in different counties, but even in differ
cnt parts of the same county"
blackstone defines law to be a I'Wlc of
cirH conduct prescribed by the supreme
power in Il State. ''It must be II rule,
| but with such unrestricted right of nu-
thOritative Interpretation, no Talc,-
therefore no lar can exist; but all law
would become practically n iargou of
| confusion and contradiction, tending
only to anarchy and the SubversiOn Of
| law and government. 1t was by this
| very fnllacy that the leaders of the late
wicked rebellion were enabled to drag
| into treason and to death, or to disgrace
and ruin, so many thousands, who
might otherwise have remained good
citizens. They asserted that the States
| had II right to Secede at their pleasure.
They knew this was n legal question,
involving the peace of the milton, the
| perpetuity and very existence of the
constitution, laws and government of
| the United States, and of which the SUI
preme Court of the United States alone
had jurisdiction. But they told the
| people that rs States and individuals
they had II right to decide the question
for themselves, and appealed To their
prejudices and passions to incite them
| to action, and thus they gathered their
legions for the attempted destruction of
the Government. In this view of the
| subject, the questions of my correspon-
dents, so far as they arc practically in
| terested, are answered. The laws are
before them and must he observed and
enforced unless and until the Courts, in
cases properly brought before them,
shall declare them void.
But they ask: ''Are these laws I'M
constitutional and have no dispO-
sitiou to avoid a full answer to all their
questions.
Section 1 of Article IL OF our COnsti-
tuition, as well as article IX of the Con-
stitution of the United States, provides
that no er post Jdcto law shall be
passed, &c.
Section of article III of our consti-
tuition provides that '"rhe Iohite male
citizens of the State shall be entitled to
vote ut all elections held, &c, except
minors, pnupers, persons under cOnvic-
ton of tFeaSDn. felony. &c. ~
Section ~ of the same article pro-
VideS that mo persons except citizens
entitled to vote shall be elected or APP
pointed to any State, County or NUM-
tain conditions of age, time of resi-
dence, &c.
Section V of the same article pro-
vides that "Every person elected or APP,
pointed to any office or trust, civil or
"militnry, shall, before proceeding 10
''exercise the authority or discharge
"the duties of the same, make oath or
affirmation that he will support the
'tconstitution of the United States and
1.-THE constitution of this State, and
every citizen of this State may, in
| time of war, instruction or public
danger, be required by law to make
"the like oath or affirmation, upon pain
"of suspension of his right of voting
and holding office under this constiti-
| ''tiOn." -
| lHe dcJ III NoNeInDeT III, lSbj, NCnap.
lO6 of Acts,) prescribes an additional
oath to be taken by persons elected or
| appointed to any office or trust, civil or
| military, to the effect that they have
never voluntarily borne arms against
the United Stntes, or voluntarily given
aid and comfort to those engaged in
armed hostility thereto, by countenanc-
j ing, counSeling or encouraging them in
the same; that they have not sought,
accepted or attempted to exercise the
functions of any Office whatever, under
any authority in hostility Ia the United
States; that they have not yielded a
voluntary support to any pretended
government, authority, power or con-
stitution within the United States, hos
tile or inimical thereto, and that they
take the obligation freely, without any
mental reservation or purpose of eva
sion. page l3S, Acts, 1863.
The Act of February -, 1865, pre-
Scribcs and requires the person offering
TO vote, when challenged, to make and
subscribe AN affidavit 10 the same effect
as the oath aforesaid. (See Sec. II,
Chap. LNI, pages AZ and As, Acts of
1861
1t is principle recognized by our
highest Judicial authorities, that tho
courts should and will sustain the. con-
stitutiOnnlity of law in every ease
which is not clearly unconstitutional.
| In all cases of doubt, they sustain the
law. Numerous decisions recognize
and establish this rule of construction,
and II is very clearly and explicitly
| enumerated i'll recent case decided in
the Supreme Court of the State of Iowa:
Morrison Us. STANDARDIZATION Law
Register; new series; vol. 3: p. 2SG, in
which references are made to the pnral-
lei decisions of the Supreme Court of