The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-29

oIhcer OF state, TO support the constitution VI
the United States shallhave engaged in 1nsur-
rection or rebellion against the same, or gwen
aid or comfort TO enemies thereof inns thlrd
section Is expressly refe red to more than once
in these acts; it is mad', in TACT, part OF these
acts; Its language was bllowed Word lot worn
IN these dIsqualifying chuses as far as was pos
sible, except in the particular in which one Is
made to apply to eligibility and the other 10
right TO vote. When, therefore, we ma thaU
Congress :, in declaring what persons small De
dIsfranehised from holiing any once, express
ly includes military aSwell as civil ohcers. as
in the third section of he amendment; and In
providing what persons shall be dIslrancnlseu
from voting, and who held any office, and omit
ting to mention military officers, we cannon
escape the conclusion that military officers
Were not here within heir contemplatlon- IL
Is impossible 10 imadne case IN Whlcn the
construction from law in para ndteftd mas d
more cogent application, for 1t Is evident mere
that the Lawmakers in framing disqualified
lions, took special cog1iZance of the tnlrd sec
ton OF the amendment. and weighed IL wore py
word. following it materially for exact IAN
guage, and rejecting every word intended TO
embrace military oficer. 1t must be borne
IN mind that we are Iere considering the class
OF military officers WHO were such prior TO the
rebellion, when the dfice was lawful, ana VINO
were known as offices of the militia; not tnat
class who became military officers during the
rebellion. As to thl last class, they all come
on that other clause On disqualification which
applies to participation in the rebellion.
Second, having the inquiry thus circum-
scribed to civil officers the question recurs,
What civil officers are to be brought within
the terms executive or judicial officers OF a
State! They clearly inlude, so far as eXecu-
tive officers are concerned, all such officers as
are generally known by the popular de
scription of State officers, or officers OF State
In one sense, the description executive o1lcer
of State is applicable to a well known class
the Governor, Lieutenant Governor, State Au-
ditor, Treasurer, Secretary of State, ana state
nffl Nn1Nn orc
tions at seat of Government. L am not pre-
pared to say that only these proper State OIL
Gals come within this term of description; nor
am prepared as to Judicial officers OF state TO
limit the descriptionto judges of!courts whose
jurisdiction extends over the entire State. l
must content myselfin saying of these officers,
executive or judicia, that they are clearly
within the meaning oithe law. Now, changing
the inquiry from an affirmative to a negative
process, such officers Is usually pass under the
descriptional municipal, do not come within
the provisions of the act, such as officers OF
cities, towns, villages nd subordinate and mu-
nicipal divisions, Wheeler their functions are
executive or Judicial, pr, as Is sometimes the
case, where the same officers act in both ca
pacities. Outside of these two respective class
es, the first of which il clearly within, and the
last of which is clearly without the puryiew,
we find in each of theS States host of officers
whose status is in some way to be determined
1t is impossible here toproceed in way of emu
meration and to distinguish by name all those
who were included and all those who are eX-
cluded. All that can be done Is to establish
some fixed rule. | feel the necessity of crcum-
specton here in saying Who are included with
in the disfranchisement, rather than in saying
who are not included; fOr where there is doubt,
according TO the rule of construction which has
been referred to, that doubt must be solved in
favor of, rather than against the right of the
voter. The exclusion is all comprehensive as
to time, and applies not OILY to those who were
i'm office when the rebellion commenced but to
! those who held the nrOhtbita6 offices nj u
previous time, although they may have ceased
to hold such office an indefinite number of
years prior to the rebellion. 1t is founded on
the idea of Il breach of official trust due to the
State as the author or donor of trust. 1t is
! founded on the idea of a breach of trust not
arising merely from allegiance as a citizen, but
duty To the State in Greet official relation to
that State and through that to the Federal
| Government. So far as this act designates by
name the persons who violated such trust it
! Is that class to whose keeping the trust is con-
| hded-that is to say, the persons who were
| clothed with the legislative power; whereas in
/ this instance there is purpose of exclusion on
common ground, and one class is designated
/ as coming within the purpose, and other class
es are left indefinite, and only to be ascertained
/ by construction. 1t Is allowable to find the in
1 definite class by the rule of assimilation. We
! see, then, in this law purpose of exclusion as
! 10 the three great departments of a State-eg-
islative, judicial and executive. We see, fur
! Their, that as to the legislative department
! lldtle up OF lt8lSIdllNG DOUS composed OF MEM
| bers and various officers appertaning to such
! Il body as IA Legislature, tha ~xoII1sion is only
/ of highest frnctionaries of that body-the mem.
brI~-and l. not carried to its subordinate Off.
! GERS. The terms of exclusion are not the mem.
! bers and officer of a State Legislature, but
simply the members of a State legislature:
/ therefore the exclusion in the legislative de.
partment has effect only upon the highest ell S
/ in that department. 1t is safe to assume the
same policy of exclusion attaches rather to
such officers as exercised functions of important
| trust III executive and judicial departments
! than to those whose functions are merely limi.
| ted and subordinate. l have already called
| attention to the cOmprehensiveness of these eX.
clusions as to persons, and to say that they EN-.
| brace all officers, large and small, coming in
any sense within the description of eXccIlfiye
or Judicial officers, who have at any time dur
| ing their lives held any one of these Offices II
would have this inevitable result, that in the
! formation of the constitution for a State bv the
agency OF its own people large proportion, a
majority of the most intelligent and capable OF
! the people would be excluded. There is nc
! part of my duty in attempting to give construc-
! ton to these laws in which | find myself in
| vOved, in such painful uncertainty as in deter
| mining what officers outside of the classes al
ready designated, come within the lust range
! of eXclusion. | have said that in addition ia
| the class of officers who clearly come within
the terms of the act as judicial and executive
officers of the State, and to those classes which
! compI ehend militia and municipal officers who
/ clearly are not within the terms of the act
! there remains a vast body of officers whose
| status is. in some way, to be defined: these arc
/ known i'll popular language by such terms OF
| description rs county, township precinct off
/ GERS. Their name is legion; their functions and
duties are, for the most part. strictly local;
some of them, such as sheriffs. justices of coun
ty courts, have jurisdiction over the entire
county; others are restricted to smaller civil
subdivisions. / have directed abstracts to be
prepared for each of these States which will
exhibit all these offices and the duties which
appertain to them, and the form of oath re-
quired. | must reserve for further considera-
ton, after the abstracts are made or if not all
what classes of these officers come within the
disqualification. As TO all other executive OF
judicial officers who are not in popular Ian
guage, characterized as county officers. I am
inclined to consider them as coming under the
description of executive and judicial officers
of a State within the meaning of these laws
deem 1t proper here, in Difference to that class
of officers Judicial or eNecutive) who are nv
the rule laid down, brought within the opera
ton of dis!ranchisement, to distinguish the
class whose duties are not realized who stand
in direct relation to the State and who IN my
opinion cannot properly be designated as qY
ecutive or judicial officers of a State-T mean
that class of persons who exercise special pub
lie duties rather in tie nature of an occasional
employment, than general and continuing office
duties. This distinction between office and
employ ment-between an officer Of a State and
an agent OF State-is well established Justice
Tilligman in Serg. and Rawle, 49, 80. recoo-
Misses in it the case of commits sioneTs appointed
to lay out roads and canals. and other works Of
public Improvement. The question arises on
a section in the constitution of Pennsylvania
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