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

in on his park and even NlbnOut any Hfol
q or fanlt alleged against him. The statu
q authorizes the Governor to set aside al
9 avoid ilfe registration Of county Bhe
: liz is made to appear to him that fraud ,
4 Irregularities hare interviewed in the r
: gistration OF the county. The fraud
/. irreeularity may be of The Commissions
!. in which none Of The Registered voters ha
!, any parlieipafiou, or il may have bee
fraud or irregniarities in some of thos
who have obisined registration and cert
| | icates, and not Of others who in no man
ner participated in, or are chargeable witt
, | participations 10 the frauds or Irregular
Ties, Thus, persons are deprived of thei
franchise, not for their own wrong, bu
, for the wrong of others.
4 Again: The fraud or irregularity alleges
and acted on, may be important, of a de
gree or kind which furnishes just cause fol
divesting right, or it may be trivial. AL
| Is placed in the arbitrary discretion OF ths
Governor, aad from his action the regis
tered and qualified voter has no appeal Of
redress. o al slFsn
/ Again: The annulment of the Fegisira.
zion may be remote from an election, OF
4 On the very eve of The election, and toe
late for the auaiifed citizen to sst about
and get OPP his proofs and obtain a new
adjudication of his right; and it may be
that his proofs are destroyed BY the death
| Of witnesses, the failure of memories, the
loss of papers, the change of Commissioner,
aud change of judgment upon the proofs.
| Thus, the right established by the registra-
ton may be, for an impending election,
annulled; or permanently and for alltime.
| Again: The annulment Of the right con-
ferred by the registration and certificate,
is not limited TO one occasion; it may be
| done by the Governor from time TO time,
| and for all time without end. Practically
| and efeetually the power given by the act
| enables the Governor to defeat and annul
not only the particular registration and
certificate in regard to which the power 10
exercised, but behind and under that the
ultimate right of the qualified citizen to
the franchise. The power to annul the
registration and certificate as often as
granted, and without end, invests the Gov
ernor with power, practically, virtually
and effeetually TO destroy the ultimate
right to the franchise, which the statute
confers upon the person having the
prescribed qualifications. The Governor
is practically made the ultimate arbiter
and judge of the right of all and of every
citizen to the franchise. Against his dis.
eretion and will none can exercise the
right, and none establish and secure their
right. &
And, further: This power extends not
only to one county, but to all the counties
OF the Stale, and not only TO one qualified
voter, but to every qualified voter in the
State, and not only for one time or occa-
sion, bat for every and all times aud occa-
sions, and without restraint and without
end, ts
1t is impossible to consider the exercise
OF such power "due process of law" or
the statute which bestows such power,
''tbe law of the land" rl--
Upon another aspect, the ACT, in the
particular concerned, may well be de-
clared void. IS
This Court does not entertain the mo-
ton that it is authorised to declare a
statute void, because of repugnancy to the
spirit of the constitution. Considerations
of this kind are properly addressed to the
Legislative body. Courts only act when
the conflict is shown, with an express
provision of the organic law, or with a
necessary implication from an express
provision. Instances of snch Implication
are found in cases; as when the delega-
ton of an express power to one depart
nent of the government is held to be, by
necessary implication, the prohibition Of
the exercise of the power by another de-
psrtmeni; or when the delegation of
power to the national government 10 held
to be the negation Of the power TO the
Stale government. .-
1t is scarcely necessary, however to re-
sort to implication, in the aspect Of the
case proposed to be shown, to find valid
ground on which 10 rest the objection to
the organic validity of the Act under con-
sideration. @
The form and plan of the constitution of
the State, expressed in the whole and in
the parts, declare, organize and establish a
system and form of government, popular,
elective, republican, wherein sovereignty
is in the electoral body Of the people.
This is expressed in and by the clauses
which delegate, reserve, restrain and dis
tribute the powers Of government among
the several departments and officers, for
the purpose of maintaining and enforcing
checks and balances upon the several func.
tionaries, and so securing the liberties and
rights OF the people, and q popular, cleo
tive and republican form of government.
The statute which empowers the Cover
nor, in his discretion, practically and
effectually TO abrogate the right to vote, of
any and every qualified citizen of the
Stale, and at any time and all elections, is
repugnant to that portion of the constitu-
ton which is expressly ordained TO secure
to the people the right TO elect the officers
of the government.
The statute which practically and ef-
| fectually empowers the Governor to de-
termine who of the qualified citizens shall
vote, and who shall not, and who shall
elect and who shall not elect the officers of
the government, himself included, is re-
pugnant to that portion of the organic
frame OF the government which was Or
dained to establish and maintain a Re-
| publican form of government.
The statute which empowers the Cover
nor practically and effectuslly to divest
out Of any and every qualified voter his
| right to vote, not only once, but from
time to time and without end, ia repugnant
to those provisions of the organic law
i which are ordained to invest the courts
with judicial power, and to exclude the
executive department of the government
| from the exercise of such power.
| For these reasons the Court is con-
| strained to hold that the statute which
confers on the Governor the. power to set
aside and annul the registration of a coun-
ty, in whole or in part, is unconstitutional
and void. In this determination are in
| cluded the act Of March s, 1867, chapter
| sc, sections and 5, and that part of the
act of February 20, 1868, chapter 81, so
far az it authorizes the Governor to set
aside registration, and undertakes to con-
firm his acts of this kind done before the
passage OF the act, and TO punish persons
who vote or who attempt 10 vote by vir-
tue of certificates issued from a registra
ton declared null and void by the Gov
ernor. F~sf
The point thus decided, disposing Of the
case in consideration, the court Goes not
think il necessary or proper to consider
the argument of counsel upon the ques-
ton of the validity Of the general tran
chise acts.
| Ii isnost to be understood, from anything
stated in this opinion, that the court ques-
tons or doubts the sovereign power of the
people of the State, expressed through a
constitutional convention or other organic
mode, to prescribe the qualification of yo-
tiers and the Limitation of the elective
| franchise, whereby the franchise may be
bestowed upon persons not before entitled
TO it, or may be taken from persons before
entitled TO il; subject, however, to such
restraints upon this power as exist in the
constitution Of the United States.
The Judgment Of the court below is az