The New York herald., 1868-10-23
THE RIGHTS OF ELECTORS.
Important Op

Thomas d. Green, Respondent, rs. William II.
Shtsntoav ana Damon Coates, Impleaded scitA
Francis A. Tnaper, Appelldnts.-Appeal from judg-
ment OF General Term OF the Sixth district ersing
Judgment In favor OF defendants.
The complaint alleged that, pursuant to the con.
sttuion OF the State OF New York and act Of the
Legislature, passed in March, 1857, lawful election
was held throughout the State on the 23d day OF
APRIL 1867, for the purpose Of choosing delegates to
meet IN convention at the capitol the first Tues
day OF June, 1857, to revise the constitution Of
inc otate ana to amend the same. That each
qualined elector was entitled to vote for dele
gates at large and for delegates chosen in the
Senatorial district in which he might reside. that
the plaintiff was native born white citizen or fun
age and resident Of the Third ward OF the city of
Syracuse, which constitutes an election district;
that the defendants were inspectors OF election for
said ward; that the plaintiff was duly qualified
elector in said district the 23d day Of April 1867
and entitled to vote; that after the defendants had
entered upon the duties Of their office as inspectors
and had duly opened the polls Of such cleo
ti9n on & the day aforesaid the plaintiff oier. %
purpose and requested the defendants to receive Tho
same; that the defendants fully intended to deprive
him OF his rights and franchises as citizen, refused
to receive the ballot so offered, and would not and
did not permit the plaintiff to vote at the election,
who claims 81, 900 damages.
The answer Of the defendants, Shumway and
Coates, who appeared, recites and alleges that by
the said act Of the Legislature Of this State, mem
toned and referred to in said complaint the qualin
cation Of electors for the election OF Senatorial dele
gates and delegates at large to meet in convention
TO revise and amend the constitution is prescribed
with the provision that no person shall vote at SAID
election who will not II duly challenged, take
do solemnly swear Tor anirm that have never vol
unfairly borne arms against the United States since
have been citizen thereof; that have voluntarily
given no aid, cOuntenance, counsel or encourage
ment to persons engaged in armed hostility thereto
that have neither sought, nor accepted, nor at
tempted to exercise the functions Of any oIce what
ever under any authority or pretended authority in
hostility to the United Sates that have not yielded
q voluntary support to any pretended government,
authority, power or constitution within the United
States hostile or inimical thereto, and did not will
fully desert from the military or naval service Of the
during the late rebellion.
The defendants then alege that at the time OF the
the plaintiff was duly challenged as an elector OF
said district and required to take and subscribe the
oath; that the oath was read 70 nm ana ~ ne refused
to take the same, and upon such refusal the DEFEND
ants refused to receive the ballot and deposit 1t in
the boxes prepared for that purpose, because the
plaintiff thus refused, and returned same to him.
The plaintiff demurred to the answer. The Special
Term, upon argument sustained the demurrer,
and ordered that the complaint be dis.
missed, with costs. Upon appeal to the General
Term the order OF the Special Term was reversed
rer and the assessment OF damages, with leave 70
amend. The damages were stipulated at fifty dol
lars and the defendants appealed to this court.
case involves the constitutional validity Of that por
tion of the act to provide for convention to revise
and amend the constitution OF this State which ex-
cudes from the privilege Of voting all who refuse te
take the test oath prescribed by the act In question
think nt s G r IN vns %
ceed to state. The first subdivision OF the tenth
section OF the first article Of the consti.
tuition OF the United States. provides that
mo State shall pass any bill of attainder.
e1 post JdctO law or law impairing the
Sty." The provision Of the act which is to be con-
sidered declares that no person shall vote at the
election for delegates to said convention who WIZ no
II duly CHALLENGED, take and subscribe an oath thae
he has not done certain acts mentioned therein. ana
inGcts the penalty OF political disfranchsement,
refusal to take said oath. BY this enactment the
citizen is deprived, upon declining 20 coniorm 10 I'VE
mandate o. rgnt ara an 70 and one the most
inestimable and invaluable privileges OF lree gov
ernment. There can be no doubt think tnat 10 ae.
prive q citizen OF the privilege OF exercising the
elective franchise for any conduct Of which he HAS
previously been guilty Is to innict punishment for
When the act in question was passed by the Legis-
lature there was no law In this state which con-
demned or characterized the conduct which is pun
lshed In this act by deprivng the citizen OF the right
of suffrage. This law created new crime, ana
makes an offence which dld not previously e1,s, shs
committed. But even If the alleged onences moor
porated in the oath prescribed were known to the
law the statute in question, In violation of the
rules OF the common law, pronounces Judgment OF
condemnation without evidence, without any oppor-
4 trial It makes the party the accuser OF himself,
and his refusal to acqut himself Tor any cause ms
own condemnation panse tra op an nad omemce dca
according TO the constitution and the laws or the
land 1t compels him, in direct violation OF the fifth
amendment OF the constitution OF tue United states,
"to be q witness against HIMSELF"
That the federal constitution violated by the pro-
vision OF the act to which have REFERRED entertain
no doubt. 1t is essentially, in the particulars indi-
Gated both pi of attander, or of pains and penal
tes, and an &c post Jacto law.
,alcn nf
tion violates the constitution OF the State oil New
York.
tuition prescribes the qualifications OF electors. who
shall be entitled to vote 'for all officers that now or
TSe second section OF the thirteenth article pro-
yides for the submission OF the question whether
convention shall be called 70 the electors quahned
majority OF the electors qualified voting at such
election shall decide in favor OF such convention for
such purpose, the Legislature shall provide Tor the
election of delegates to such conventonn This clause
does not confer upon the Legislature any power 70
constitaton or to restrict the right OF surage which
the constitution has established. IL would be extra
ordinary If the Legislature had the right to deter
mine who were entitled to the privilege OF voting,
and thus in the exercise OF an unlimited discretion
be able TO dsfranchise any class OF citizens when
the right s already clearly established. such
power would be liable to the Rrossest abuse danger
Gus IN the extreme, and obviously was never IN
tended to be conferred i Is evident va, tnlnk rnas
electors to pass upon the question whether or not
there shall be convention, plainly imports that the
same electors and no Others are qualified to vote
for delegates and any disfranchsement OF any por-
tion OF said electors Is violation OF this section and
therefore void
The statute also violates section OF article or
the constitution OF this State which declares that
emo member OF this State shall be dsfranchised or
deprived OF any OF the rights or privileges secured
TO any citizen thereof unless by the law OF the lanu
or the judgment OF his peers" The 'law OF the land,
does not mean statute passed for the purpose OF
working the wrong. but the law which existed at
the time when the alleged offence was perpetratcd.
The provision intended TO restrict the powers oL
the Legislature and to prevent any act which would
deprive party OF his rights or disranchise him un-
I'll it was ascertained judically that they had been
forfeited. The act In question pronounces Juug-
mept and dsfranchses the elector without judge or
Jury or any OF the forms required by the ordinary
course OF legal proceedings ,,.S
Ii also violates section six OF article one, when
declares that no person shall be held 70 answer ior
a crime except on prcsentment OF grand jury, ana
the second section OF the same artcie when secures
the right or trial by Jury In all cases in which 1t has
herefnfnre been held inviOlatc.