The Athens post. [volume] (Athens, Tenn.) 1848-1917, 1869-06-25

us the following abstract of the opinion
of Judge SMITH, recently delivered at
Brownsville:
The General Assembly which first as
sembled under the Amended Constitu-
ton proceeded to enact, on the 9th day
of June, 1860, Gan act to limit the eec-
tive franchise" The sixth section of
the act provides "that the Clerk of the
County County of each county shall
open and keep registration of voters,'
and ascertain by proof, under oath, the
persons entitled to vote under the pro-
visions of the act and shall issue to
such persons certificates of registration {;
and that no person shall be permitted to
vote unless so registered. Afterwards,
at subsequent session of the same
General Assembly, on the 3D. of March,
1866, an act was passed to alter and
amend the act, of which the substance
is above recited, and is entitled "an act
to alter and amend an act entitled IAN
act to limit the elective franchise pass
ed June ). 1865" The original act of
June 5, 1865, is declared to be repealed,
and the new act substituted in lieu
thereof.
Neither of these acts, of which the
substantial provisions have been recitcd,
conferred, nor did any other prior act
in terms confer upon the Governor, or
any other officer, the power to abrogate
the registration of Il county, or to an
nul the certificate issued to u voter. or
to take from n registered voter the privi-
! lcge of the elective franchise.
The act of February 26, 1867, is the
final act passed by the first General AS
scmbly of the State, prescribing the
qualifications of voters and the limita-
ton of the elective franchise. This final
act is declared to alter and amend and
be in lieu of the two preceding acts, of
June 3, 1865, and May 3, 1866.
The elective franchise is right which
the law protects and cnforces as jcal.
ously as it docs property in chattels and
lands. 1t matters not by what name it
is dcsignatcd-the right to vote, the
elective franchise, or the privilege Of
the elective franchise. The person who,
under the Constitution and laws Of the
State, is entitled to it, has a property in
it which the law maintains and vindi-
Gates as vigorously as it does any right
of any kind which men have and enjoy.
Persons invested with it cannot be de-
privcd Of it otherwise than by due pro-
cess of law.
TO the same extent that persons can
not be deprived of their lands and chat
tells, is it also true that without due pro-
cess of law they cannot be deprived or
Invested of the muniments which evil
dcnce and establish their titles aud
rights, such as deeds. bills of sale, bonds,
and promissory notes; and the certiii-
cate of registration and right to vote
may be properly included in the cate
CORY.
The power bestowed upon the Gov
ernor to annul the registration is, in
most essential particulars, devoid of
the quality of due process of law. His
action is er parte, and without oppor-
tunity of defense.
The citizen qualified by registration
and certificate is deprived of whatever
right the rcgistrat on and certiticatc
confer, without Il hearing, and without
knowledge and information that action
is proposed to be had which affects his
rights.
The statute Which empowers the Gov
ernOr to divest out of any or every
qualified voter the right to vote, is re-
pugnant to those provisions of the Or
ganic law which are ordained to invest
the courts with judicial 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 county, in whole or in part, is UECoN-
sTITUTIONAL AND VOID.
In this determination are included
the act of March 8, 1867, chap 36, sec
tons 1 and 5, and that part of the act OF
February 26, 1868, chap 81, so far as il
authorizes the Governor TO set aside
registration, and undertakes to confirm
his acts Of this kind done before the
passage of the act, and to punish per.
sons who vote, or attempt to vote, by
virtue of certificates issued from reg,
istration declared null and void by the
Governor.