Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-06-16

) Ispoken and written with view to the
i exposition, the good sense of mankin
9 has settled down to this, and they wei
b intended to secure the individual from Il
!, arbitrary exercise Of the powers of go,
/; Iernment, unrestrained by the establishe
: principles Of private rights and distribg
: Tive justice" Mr.. Cooley, a recent al
: thor whose treatise on constitutional lin
; itations is rapidly becoming an snthorit
10 the courts, in the course of discussio
and explanation Of the rule of "due pro
} cess of law" says: ave shall find tina
general rules may sometimes be as OBJ
noxious as specisl, when in their result
they deprive parties of their vested rights
While every man has right that hi
own controversies shall be Judged BY tn,
same rules which settle those Of his neigh
bors, the whole community is also emit
tied. at all times, TO demand the protsc
ton of the ancient principles which shield
private rights against arbitrary interior.
ence, even though such interference may
be under a rule impartial in its applica-
ton. 1t is not the partial character Of the
rule so much as its arbitrary and unusual
nature which condemns as unknown to the
law of she land. n--Oool Const. Law S65.
| The proper inquiry to follow il s"What
| effect is to be given to the registration OF
. citizen as qualified voter and whether
and TO what extent the registration invests
the registered person with the elective
| franchise and next, whether the setting
aside and annulling by the Governor of the
registration of county, in the manner
authorised by the act of March s, 1867, is,
in respect of the persons who have OBJ
tained registration and certificates, a pro-
ceeding which fulfls the rule of due
process of law" HN rf ErEE
The functions and powers Of the Com
nississioner Registration, are Of judi
cial nature. More distinctly go are they.
than are those of the ordinary inspectors
or judges of elections. And of these latter
1t was said, in the opinion of the Supreme
Court of the State, in Rail VS.. Potts, 8
Hum. 227, "they are unquestionabIy ju-
dicial officers" When a person applies to
q Commissioner for registration aud GER
tifcate, the Commissioner hears the proof
of witnesses, both for and against the
claim of the applicant, and if the proofs
adduced establish or satisfy the judgment
OF the Commissioner, that the applicant
possesses the qualifications prescribed by
the Franchise act, and ia not subject 10
the disqualihcations denounced by il, the
Commissioner adjudges the applicant 10
be entitled 10 the franchise, and causes
registration to be made of his name az
qualified voter, and issues TO him certif-
cate which declares his registration aud
authorizes him to vote at public elections.
This ends the functions and powers of the
4 TlaF1afu a.
and completes the evidence and award of
his right and title to the privilege of the
elective franchise. These functions and
powers characterize essentially an officer
OF Judicial nature. r. g
The act and decision and Judgment of
the Commissioner is of g judicial nature.
Under the franchise law he is the appoints
ed tribunal, and the only tribunal, EN-.
powered to ascertain and decide what per-
sons possess the qualifications which en-
title to the privilege of the elective fran
chise, and to award to them the evil
dence of their right TO vote, and authority
to exercise and enjoy the right Without
his adjudication no person can establish
his right and obtain the evidence of the
right and authority to exercise and enjoy
it. And with his adjudication persons are
invested with the privilege oflhe franchise,
and the right to exercise and enjoy it. Ii
is an adjudication upon a right, and de-
cision declaring its existence and award
ing its enjoyment. Without and until
such adjudication, the privilege Of the
franchise has no practical existence to
the person, and with such adjudication
the applicant is invested with the priyiI-
4 q L. H. -, "a
The functions and powers, then, of the
Commissioner, are of judicial nature;
and his Office is an Office of judicial ma
ture and his decisions are of judicial
nature; and his decision in favor of an
applicant is an adjudication of right;
and the certificate issued TO the applicant,
ia in the nature of a judicial award, de-
claring, evidencing snd establishing the
right.
The registration law of Tennessee differs
essentially from the Registry Acts Of some
of the States TO which reference has been
made in the argument OF counsel. The
purpose and operation of the Registry Acts
referred TO- are to regulate the exercise Of
the right to vote. They are election regu.
lations, established to facilitate the conduct
of elections, TO preserve order at the polls,
10 guard against the strifes and delays
likely TO occur at the ballot.box, By the
investigation and trial there of controver-
sizes as to residence, and other circum-
stances, on which depends the right TO
vote, at the particular box and on the par
ticular occasion.
Essentially different are the purpose and
function of the registration proceeding
under the franchise act of Tennessee. The
purpose and operation of the proceeding
are TO try and adiudicate the right of the
franchise. 1t is tribunal TO try and de-
termine the right, and to establish the
right of those entitled, and deny the claims
of those not entitled. The registry acts of
the States mentioned purport to regulate
the exercise of the right; the registration
proceeding OF Tennessee investigates, as
certains, tries and establishes or denies the
existence of the right. The former reeu-
late the exercise of the right in the par
ticular manner, at the particular place, en-
the particular occasion. The latter regards
and adiudges on the existence of the right,
at any time or place, or on any occasion.
| Undoubtedly there are the resemblances be-
tween the proceeding here and the pro-
| ceeding in the other States Such resem-
blances do not go to the substantial and
essential character and effect of the pro-
ceeding under the Tennessee statute. The
broad line of difference is, that the one is
a regulation of the exercise of the fran
chise; while the other is an adjudication
| of the right to the franchise.
| The next matter of inqniry is whether
the setting aside and annulling by the
| Governor, of the registration of county
is, in respect of the persons whose regis
tration and franchise are so set aside aud
aunulled, "dus process of law"
An illustration at hand will help TO an
easy and correct answer: The clerks Of the
county courts and commissioners Of deeds
are, by law, authorized to take and certify
probates and Acknowledgements of deeds
and other instruments required to be reg.
islered in the registry books of the couB-
ties. Such probate or acknowledgment
and registration of deeds is prima tacid ev-
idence of their execution; and, so certified
and registered, the deeds evidence or OPT
rate to invest the garantees with rights of
property. II an act of Legislature were
enacted empowering the Governor to set
aside and annul these certificates, and the
effect and operation of them, and deprive
or divest the garsntees of rights created
by or derived from them, the absurdity
and constitutional nullity of the statute
would be intensely manifest.
The absurdity and nullity would not be
dispelled by showing that the statute au-
thorized the Governor to set aside and an
null the probates and registration of any
and every instrument made or done by
any clerk or Commissioners, if it be made
10 appear 10 his satisfaction that frauds