The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1873-12-18
Opinion Of Judge Fisher ON bhe
Election Laws
William Atkinson, Relator,
A. A. Motley, ct al, Registrars OF Tate
County.

general election on the HrsG MOnuay va
November. 1873, and that the Registrars
of said county refuse to give him the
proper certificate of his election.
The answer of the respondents, after
setting up the division of the district INTO
two beats and the election of one justice
for each beat, in this way making two
justices for the district, submit as upon
demurrer that the law approved on the
| 18th day of May, 1871, under which the
general election was held, IS unconstltu-
| tional.
AS there must, always, be clear right
to entitle party to this remedy by man
damus, and as this right originates IN a
law alleged to be in violation of the Con-
stitution, this question comes first in or
Ger for consideration.
The first section of the law in question,
declares that ga general election shall
| be held in the several districts OF each
county, on the first Tuesday after the tlrst
Monday of November, 1871, and blenni-
ally thereafter, as required by the Constr
tuition of this State" Section 800 OF
Code.
The next section provides for the cleo
ton of certain Senators, Representatives,
Clerks, Sheriffs, District Attorney, JUS
tees of the Peace, etc. Subsequent Sec
tons provide for the registration of vo-
tiers and prescribe the manner of holding
and certifying the returns of elections,
etc.
The Constitution on this subject de-
clares that 'all general elections shall be
by ballot, and shall commence and be
holden every two years, on the first Tues
| day after the first Monday in November,
until altered By ldsc." Art. 4, sec. z.
Again, the Constitution requires the
Legislature to provide by law ''for the
registration of all persons entitled to vote
at any election" and prescribes an oath
to be taken by persons entitled to register.
Art. Z, sec. 3.
| The next provision declares that "the
political year of the State of Mississippi
shall commence on the first Monday of
January in each year, and the general
election shall be holden on the first Tues
day after the first Monday in November,
biennially" Art. II, sec. 1. This Sec
ton, so far as the election is concerned,
is substantially the same as section seven,
except that the first Tuesday after the
first Monday in November seems to be
irrevocably fixed as the day for holding
| the general election. Comparing the law
and the few provisions in the Constitu-
| ton, on this subject, together, but one
question arises for the consideration of
| the Court, and that is, whether the duty
| of ordering the first election devolved up
on the Legislature. The Constitution,
though definite in naming the day of the
week and the month in which elections
shall be held, is entirely silent as to the
year in which the first election shall be
held after the government shall have been
organized. The Constitution is posi-
tive in requiring biennial elections; and as
the very term biennial presupposes first
election or starting point for future cleo
tions, this subject was, of course, left in
the sound discretion of the Legislature,
who, in prescribing for the governmental of
biennial elections, must of necessity, pro-
vide for the first election. While it may
be true that the Legislature were clothed
with wide discretion in fixing the year
for holding the first election, strict re-
gard to the true spirit at least, if not to
the letter of the Constitution requiring BIZ
ennial elections, would admonish them
that the election should not be postponed
for an unreasonable time. In the exer-
else of this discretion, the Legislature
could, no doubt, have ordered the election
to be held in either the year 1870 or in
1871, and this election, being the first
election, would have settled, under the
Constitution, the time for holding future
elections. Whether elections should come
in the ''even or the odd' year, was ques-
ton left by the Constitution with the Leg
islature--not that the Constitution in so
many words so declares, but emitting to
fix or to lay down any rule on the subject
to guide or to restrain the Legislature,
and the question being in its very nature
legislative, the power to enact law des-
ignating the year, like every other unre-
stricted power, was purely matter of leg |
islative discretion. The question, there |
fore, coming before the Court in this |
light, if governed by the settled rule, that, |
when n matter rests purely in discretion, |
though the Court may not have acted !
wisely in its judgment, yet being matter |
of discretion, the action of the Court must |
be sustained-so in regard to this law,
originating in legislative discretion, the /
question is not, and never can be,
whether the legislation was wise, proper,
or likely to be detrimental to the true in
terest of the State-the sole inquiry
must be whether it was legislative ques-
ton, and whether the silence of the Con
stitution left the Legislature free from
restraint on the subject.
But it is said that there is something in
the shape of an ordinance, which prescri-
bes different rule on this subject This
ordinance not being before the Court, its
merits cannot be fully appreciated. If it
rises in importance to the dignity of a
provision, and really res !
trains legislation on this subject, it is
simply part of the Constitution and 6
ought to be published as such. If on the
it forms no part of the Consti-
tuition, it can have no restraining influence
upon either the Legislature or any of the
other departments of government The c
Constitution of the State, next to, what is 9
declared by the Constitution of the
United States, to be the supreme law of !
he land, is the supreme law of the State.
It is supreme because it prescribes rules i
If action for the Government, and acts a
IPon the Government just as law, in its +
ordinary sense, acts upon the citizen, by
The citizen is free to do what
re pleases to the extent that he is net re- A
trained by law; and the same remark
nay be made in regard to the govern
nent of the State-that the legislative
'ower exists to the extent that It is not h
United by either the supreme law Of the n
United States or by the Constitution of the
'tate. An ordinance, therefore, not
Orming part of the Constitution, but
eng at most mere law, would stand
pom the same footing as any other law,
ubject to be repealed by the Legislature;