The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1865-09-14
MnEELrNa. sent. Q. ls05

GENTLEMEN: Your letter has been
handed me to-day, asking my opinion
in relation To your duties as SuperVi-
sors and Inspectors of Election, under
the second section OF the act of Feb
ruary %, 1855, to amend the law relat-
ing to elections. Esr r....-E
That section provides, in effect, that
when any person offers to vote, if his
vote be challenged, the Supervisor
and inspectors shall refuse to receive it,
until he produces to them his affidavit,
sworn to and subscribed by him, in the
particular form set forth in the act.
They are to reject the vote, if the oath
he not produced, Notwithstanding the
person offering to vote may possess all
the qualifications of voter required
by the constitution of the State.
During the last session of the LegiS-
lature, l earnestly opposed the passage
of this act, cOntending that the Legisla-
ture had no authority to pass it, and
that, If they had, the measure was in
itself ineXpedient and unwise. Subse-
quent reflection has served to confirm
the views then entertained.
The right of suffrage is the foundation
on which rests the whole structure of
republican government, and is there
fore properly defined and regulated by
the constitution itself. To prescribe
who shall be their own constituents is
no part of the legislative power. In
every State of the Union, this is done
by the constitution-not by legislative
acts. The Legislature may pass the
necessary laws to carry into execution
the provisions of the constitution on the
subject, and there their authority ends.
In our State mt least, no authority over
the right of suffrage has been granted
to the Legislature, except in a single
particular hereinafter noticed. Yet our
Legislature, delegated by the people to
RNRFCfRR nnlv the nONNRrS, H.,
the constitution, have assumed the nIi-
thOrity to prescribe who shall be the
constituency of the State.
If they may require the officers of
election to reject the vote of any one
who has not taken the oath in question,
they may impose in the same manner
any other restriction upon the right of
suffrage that may suit the prevailing
notion of the day. The esupervisorsand
inspectors may be required by law to
reject the vote of every one who is
challenged, unless he produces n GER
tificnte to show that he is n member of
particular religious denomination, or
declares under oath his determination
to support the measures of some politi-
cal party. The right of sufIrnge will
depend upon the passions or the preju-
diceS which may influence the Legisln-
ture of the day. Such, however, was
not the intention of the constitution.
ticle of thnt instrument, every citizen
of the United States residing in West
| Virginia is n citizen of the State; and
by the first section of the third article,
The tpdit6 male citiseIls Of the State shall
be entitled to d COie at all elections held
IcitI,in the election districts IA iUhjch then
respectively reside, unless they are mi
noTs, paupers, of unsOund mind, under
conviction of treason, felony, or bribery
in an election, or have not been resi-
dents of the State for II year and of the
county for thirty days. 5
The right of citizenship is here placed
beyond the control of the Legislature.
Any person who is u citizen of the Uni
ted Suites under the laws thereof, is, by
force of our own constitution, Il citizen
of this State il he resides therein.
The right of fsutIrage is equally beyond
the power of the Legislature. The lam
| guage of the constitution is imperative
The white male citizens of the State, II
| is there said, shat be eHtitEEitO UOte al
all elections held within the election
districts III which they respectively re-
| side, unless they are within the eScep-
tionS which are clearly defined in the
first section of the third article. What
right have the Legislature to say that a
white Innle citizen, not included within
| these exceptions, shall not be entitled
| to vote? ss-
The cnse then is this: Certain citizens
possess the qualifications required by
| the constitution to make them voters
The constitution says, "they shall be
entitled to vote" The Legislature say
"they shall Motive require something
| further" Which, gentlemen, Oughj
you to obey 7? 1t Is impossible to com,
| ply with hoth and Yon should, there.
fore, obey the fundamental law of thC
State.
1 need not remind You that you tax,
an onth to support the constitution o
this Stnte. No part of the constitution
is excepted. You swear TO support til,
first section of article third, as well a,
every other part of that instrument
Il Nor is. there any qualification or condi
ton in the oath. You do not swear I,
support the constitution, If the Legis
lature are willing for you to do so, bu
to support it without qualification o
Il condition, and in opposition, if it mus
be, to Legislative acts in violation o
its provisions,
The Legislature have no power ex
cept what is derived from the constitu
ton. Outside of this limit, their act
: are not laws, nor are they obligator,
upon any one-whether officer or indi
viduRl. This is the great principle upol
which written constitutions operI,tf
and It has been acknowledged as sue
from the time the first constitution wa
formed in this country to the preseu
day. We do not recognize our PariiG
ments as Omnipotent. The very pun
: pose of a written constitution is to mar
out for the Legislature, US well as tn
other departments of government, tn
limits within which they may ao
! When they pass those limits, they az
without authority and their acts NJ
l!vOid.
2 Permit me to say that free govern
ment cannot long be maintained unles
these constitutional Limitations are beI