Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-09-22
THE MUNICIPAL ELECTION.
The Right of the City 20 Hold the
Election Under its Charter-ImpOr-
tant Legal opinion.

name and at the instance Of the corporate
authorities of the city Of Nashville, and of
the citizens and property holders, as the
legal advisers of the corporation, to ex-
anime the charter Of the city and the laws
of the State, and give a written opinion as
to who are entitled to vote at the ensuing
municipal election, and by whom the
Judges of election should be appointed.
We have accordingly, as lawyers, made the
examination required, and are prepared to
give you the opinion sought.
The last act of the General Assembly OF
the State, directly bearing on these points,
is the act of the 18th of February, 1858,
the provisions Of which are as follows:
"That an election for Mayor and Alder
men, and Common Council shall be held in
zach ward of said city, on the last Saturday
in September of each and every year. The
voters shall vote by ballot; every white
male of the age of twenty-one years and
upwards, being entitled to vote by the laws
of this State, who shall have resided within
the city six months next preceding the
election at which he may offer to vote,
shall be entitled to vote; but only in the
ward where he resides. Non-residents own
ing a freehold in said city, being quail
fed to vote for members of the Gene
raj Assembly of the State of Tennessee,
shall be entitled to vote in the ward
where their freehold is situated. And
wards than one, he or they may elect
in which Of said wards to vote, bat shall
not be allowed to vote in more than one.
Judges of election for each ward shall be
appointed by the existing Board of Alder
men, who shall take an oath to faithfully
and impartially discharge their duties.
They shall open the polls at nine o'clock
in the forenoon, and close them at four
o'clock in the afternoon, when they shall
forthwith proceed to ascertain and trans
nit TO the existing Mayor the result of such
election, certified and authenticated by the
Clerks and a majority of the Judges of
election for each ward. The Mayor shall
deliver to the City Recorder the returns as
they may be received by him, who shall
forthwith enter the same, as they are sue
cessively received, in a book to be kept for
that purpose. = And all persons
chosen in each ward as a member of either
branch of the City Council, shall, within
two days after his election, be furnished by
the City Recorder with certificate thereof,
which certificate shall be presumptive evil
dence of the title of such person to a seat,
but each branch of the City Council, how
ever, shall have authority to decide ulti-
mately upon all questions relative to the
qualifications, election and return Of its
members"
These provisions are clear and precise.
The elective franchise, so far as the NUM-
cipal elections for city officers are con-
cerned, is, by the express provisions of
the charter of incorporation, confined to
white males" of the age Of twenty-one
and upwards, either residents for six
months within the city, or if nonresident
owning a freehold in the ward in which
he offers to vote, and who is entitled to
vote by the laws of this State" The
Judges of election are to be appointed by
the "existing Board Of Aldermen" and
shall hold the election and make their re-
turns in the mode prescribed. "The re-
suits of the election, certified and anthem
ticated by the Clerks and a majority of the
Judges of election" shall be transmitted to
the Mayor, who shall deliver them to the
City Recorder, who shall forthwith record
the same, and within two days after the
election, furnish each person chosen as a
member of either branch of the City Coun-
Gil with a certificate thereof Nothiug
could be palmer or more systematic. Upon
these provisions, which admit of no doubt,
we are clearly of opinion, and presume no
one will question the correctness of our
conclusion, that, by the charter of the
city, the right to vote is confined to white
males" that the Judges of elections must
he appointed by the existing Board of
Aldermen" and that a certificate of cleo
ton can only be made out by the Recorder
upon the returns and the record thereof
made in the mode prescribed.
1t has been suggested, however, that
these plain provisions have been modified
or entirely changed by what are known az
the franchise laws. And this, it would
seem, is the view of the Executive of the
State, whose opinions are, by reason of his
official position, entitled to the highest re-
spect and the greatest consideration. We
have not had the advantage of the opinion
of the Attorney General of the State, or
other legal advisers of the Executive, az
to what portion of the franchise laws are
relied upon az producing such sweeping
results. We have been compelled to ex-
anime these laws for ourselves, and upon a
full investigation, and a most careful study
of their scope, object and provisions, we
can find nothing in them to sustain the
conclusions suggested.
These franchise laws were passed by the
late General Assembly of the State osten-
5ibly under the authority conferred by the |
amended constitution of 1865. Grave |
doubts Of the constitutionality of all these |
avs have, it is well known, been enter |
aimed by the legal profession in the State. |
It was thought that the power conferred by |
he amended constitution was to restrict, |
lot to extend the elective franchise |
hat it was a power outside of the |
ordinary functions of a legislative |
BODY, and which should, therefore,
De strictly construed, and was exhaust
ed by its exercise in the passage Of the first |
franchise law. 1t was also thought that |
he first franchise law was, itself, in some |
IF its leading provisions, in conflict with |
he constitution ofthe United States. These |
avs, except the act of February %, 1867, |
not then passed, were brought before the |
Supreme Court of the State for considera- |
ion, at its last term at Nashville, and the |
decision was in favor of their constitutional |
ty, both as respects the constitution of the |
State and the United States. From this |
decision, writ of error was taken to the |
Supreme Court of the United States, which |
is still pending. For the present, whatever |
may be our convictions as lawyers, of the |
decision Of the Supreme Court Of the State, |
We must yield to it becoming respect and |
obedience. In this decision, no question |
was made or decided upon the electoral |
rights of members of corporation, either
public or private, for no such question was
by the case, nor could be raised |
lnder the then existing laws, the act of the |
18th OF February, 1867, not then having
been passed. 1t is this last act which is |
supposed to have wrought the sweeping re-
Iults under consideration.
This act, chapter XVI of the public
printed acts of the second adjourned ses-
ion of the thirty-fourth General Assembly,
has been carefully and thoroughly exam
ned. We have been able to find only one
,lause, which can, in any way, be held to
,ear upon the elections of municipal cor
] II I II +.