Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-09-22

NOtGl lulHb bC a Nnitt lie COI-
struetion eontended for would require us 10
hold that the Legislature has undertaken
to sweep away the most essential franchise
of municipal corporations by implication
for, assuredly, this has not been done d.
rectly. What the Legislature intended to
do was to add an additional requirement
to those provided in the charter, to entitle
a person to vote. And this is precisely what
has been done by the language used, upon
any known rules of exegesis.
Whether, if the Legislature intended to
go further, and had, in express language,
taken away the elective franchise from one
set of corperators and conferred it upon.
others, the act would have been valid, is
one of those grave questions which remains
yet 10 be definitely settled by judicial de-
cision. That the Legislature of State
could not, without the consent of the cor
porators, make so sweeping a change in
private corporations, even by change of
the State constitution, has been considered
as settled law since the great case of Dart
mouth College, and has been directly held
by our own Supreme Court in the case of
the charter of the Union Bank. And, al
though the right of the Legislature to
modify municipal charters has generally
been conceded by the courts, it has always
been with the qualification that the modiii-
cation should not effect vested rights. We
do not feel called upon, in view of the
obvious construction of the act of the 28th
of February, 1867, above given, to go into
the question whether the sweeping change
contended for, would be at all consistent
with the vested rights of the municipal
corporators Of this State.
1t need scarcely be added, that the cleo
tions of municipal corporations are held
under the charter and bylaws of the cor
poration, and not "under the constitution
and laws of the State" so as to make the
laws applicable to the latter class of elec4
tions applicable to the former also. This
was expressly decided by our Supreme
Court in the case of the State as. Listen, 9
Hump, 603, and can admit of no serious
controversy.
No provision of the franchise laws, there
fore, which is not by the express tenor of
the act extended to municipal corporations
can affect such corporations. The only
provision Of these laws which is made to
bear upon them, is contained in the clause
quoted, and the whole effect of that provi-
sion, admitting its validity, is as we have
seen, to add another requirement to those
embraced in the charter of incorporation
to entitle person to vote, and that is regis
tration.
The result Of these views is that the col
ored persons who are thought to be vested
with the right to vote at general elections,
by the act of the 25th of February, 1867,
Al Al
nicipal election. We do not understand
that the corporate authorities desire to
prejudice this question so as to prevent
the testing Of the correctness of our conclu-
sion by the courts, nor do We Whatever
rights this class are legally and constitu-
tionally entitled to- let them have; and,
as we would desire the opportunity of le-
gally testing our own rights to be preserved
to us, let us preserve to this, as we'll as to
all other classes, the like opportunity Of
testing their rights in the courts, if they see
proper. We suggest that this may be done
by receiving the votes of such persons, and,
by separate ballot-boxes and lists, keeping
them distinct from the votes of those who
are, in our opinion, legally entitled to ex-
ercise the privilege. No return of these
votes need be made, but the same should
be carefully preserved for the purpose sug-
gested.
We think there is no real doubt of the
right of the existing Board of Aldermen
to appoint the Judges, to open and hold
the approaching election for Mayor, Alder
men and Common Council. The distinc-
lions must be kept in view between cleo
tions held under the constitution and laws
of the State, and the elections held under
the charter and bylaws of the corporation
of Nashville, and other incorporated towns
and cities, under special acts of incorpora-
ton. The corporation of Nashville derives
il sole authority and privileges from its
charter. The charter must be regarded as
the constitution Of the corporation and the
body polite acts Independent of the general
statute laws of the State, and alone upon
the powers conferred by its charter. This
distinction Is fully recognized and settled
by our own Supreme Court, in the case Of
the State Us. Liston-9 Humphreys, R.
603. 1t has always been the practice here
iofore, for the corporate authorities to APP
point the Judges to hold the corporate
elections, because it is the law under the
charter; while, at the same time, in all
State and county elections, the County
Courts appointed the Judges If the County
Courts failed to appoint, then the Sherifs |
appointed the Judges.
The charter of Nashville Of 1853 has not |
been repealed, modified or taken away by |
INV act of the General Assembly of the |
State of Tennessee that we know of. The |
franchise act of the 18th of February, 1867, |
section 5, provides that no person shall vote |
n any State, county, district or municipal |
election, or any other election held under |
he laws of this State, unless he is a regis
cred and qualified voter under said fran
,hise law. This does notin the least restrict |
he powers of the corporate authorities to
lppoint the Judges to hold the corporate
.lections, but simply and alone, restricts
he voters to that class of white males who |
nav be registered voters under said fran
hise law. We submit that no candid and
lawyer can claim more for
aid 5th section, than that all who may be
Untitled to vote. must be registered voters
Inder the franchise law.
The Governor of the State claims the
light of the Commissioner of Registration
o appoint the Judges to hold municipal
lections, "a well as all other elections, by
-irtue of the latter grant of the tenth Sec
ion of said franchise law of 1867, which
onfers upon the Commissioner of Regis
ration the power to appoint the Judges
nd Clerks in all elections in the same man
er, and governed By the same rules, as here
ofore conferred upon Sheriffs. That is, if
he County Court failed to appoint, or the
ppointees failed to attend, then the Sher-
ifs could appoint. By said tenth section,
he provisions of the Sheriffs were trans
erred to the Commissioner of Registration,
nd no more.
But, supposing the Governor is right in
be belief, that the Legislature intended to
axe from the County Courts and Sheriffs
he appointment of the Judges and Clerks,
nd confer the appointment upon the Com
Missioner of Registration, that has nothing
0 do with the Judges appointed by the AL
ermen to held the corporate election in
Nashville The election is not to
e held under the laws of the State,
ut under the corporate charter of Nash
lille, which has not been repealed or mod
fed in that respect And the question is
lade apparent by the first clause of said
ection TO- of said franchise act, that the
legislature did not intend to interfere
18th the appointment of Judges and Clerks
} hold municipal elections; because it
rovides that if any County Court shall fail
r refuse to induct into Office any of the
foers elected under said act, then upon
r 4 a. = 1