Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1883-04-03

with the Legislature. All il proposes TO
do is TO change the month in which aud the
day in which the future elections required
by law 10 be held shall take place, and that
only until otherwise prorided By taG;
But enough on this point The next
Question TO be determined is, will this
amendment, il adopted, operate er proprio
tigOre, or, in other words, will IL De sell
executing and by its own force change the
month and day of the elections from the
second Tuesday of October to the tuesday
after the first Monday OF November
submit, witbou hesitation, that 1t Will not
But this question is really a matter OF no
I'M portsnce to the matter under coDsidera'
tim; for even if it be sell executing, aud,
by reason thereof, changes the day aud
month of the election, it relates, as we
have already seen, 10 the elections there
after required by the law, as il now Is 10 be
hcid, commencing with the year 1886 that
being the next election provided for by the
Statute. But / propose TO demonstrate
that this amendment will not be set-eXe'
cutting, but will require legislation 10 put
II in operation. The shortest way TO test
this question is to suppose all the Statutes
in regard to elections to have been
repealed, aud that section sew
en- OF article 4 Of the Constitution as
amended, will be in full force on ana after
the dey following the second Tuesday OF
October, 1884. Now will you, Mr.. Editor,
or Mr.. Lamb, or Judge Brsnnon, or any
one else, tell me when and by what author
ity an election for any purpose could De
held, conducted and returned, aud the re-
suit thereof ascertained, until an act OF the
Legislature had been passed for the pur-
pose. There are some propositions TOO
PLAIN for argument. and this is one OF
them, for certainly no one will contend
that an election could legally be he'd un
der the Constitution unalded by a statute.
One method Of determining whether or not
a Constitutional provision is self executing
i to find out, il We can, WHITTIER II IS ad-
dressed tO,the Legislature alone, or whether
il can operate, in whole or IN part, indie
pendent of the Legislature.
The case of List VS.. the City OF Wheeling
: West Va, sol, referred TO by Judge Bran
non in support of his and your position on
this question, presented the question OF a
limitation OF the power by an express pro-
vision OF the constitution Of COUNTIES, cities,
&c, 10 contract debts, and in delivering the
opinion OF the Court Judge Raymond says
is the Sih section of said 10Th article OF
the Constitution addressed to the city, &c.,
or is IL directed to the Legislature only!
II will be found, on examination OF the
Constitution that many of its sections ale
expressly directed to the Legislature:
Such sections under the weight Of Judicial
decisions upon the subject, do not apply
TO or affect laws passed, and in force at the
adoption Of the Constitution, in so far as
they are directed in the Legislature there
in named is held to mean the Legislature
created by that Constitution This doc
trine applies necessarily as well to an
amendment to Constitution, as to the
constitution itself. The court, through
Judge Raymond then decided that the
prohibition of power, in question, was eN-
pressly devoted to the counties, cities &c,
concerned, as well as to the Legislature.
Judge Brannons reference to the case was
an unfortunate one, for it certainly decides
nothing in his favor and so far as 1t does
decide anything bearing in this question 1t
is clearly against him. And to test the
question as to which of us is right as to
the effect OF this case let US again refer 10
the Constitutional provisions in regard to
time and manner OF holding, conducting
certifying and returning elections, and
asceItaining the results thereof, and all
whether thcg are addressed to the Logisla-
ture alone, or to some other officer tribun-
ial or authority.
Treating the amendment as adopted, Sec
ton of article4 provides Cor will provide)
that the general elections, etc, shall be held
on the Tuesday after the first Monday in
November until otherwise prOrided by lar.
Section IL of said Article provides: The
Legislature shall prescribe the manner OF
conducting and making returns OF elec-
tons; and shall pass such laws as may be
necessary and proper to prevent intimida-
ton, disorder or violence at the polls, and
corruption or fraud in voting, casting the
vote, aSCertaining or declaring the result,
or frauds in any manner, upon the ballot. ,
Now taking these two sections together
assert at proposition too plain for contro'
versy, that they are addressed TO the Legis-
lature. aud TO the Legislature alone; and II
this proposition be disputed | will ask the
gentlemen diSputing it, to enlighten US as
To whom and what it is addressed. And If
il still be Contended that this constitutions
al change of day and month can operate of
itself, without the aid of the Legislature, |
will ask the same gentlemen 10 tell us how
and by what means it can so operate and
the authorities he relies on to sustain his
position, for up TO this time no such au-
thUrity has been produce /. Iae
case of Grives vs.. Slaughter, - Peters
/. S. Sup. CT. L 4i9, referred to by Judge
RAYMOND in the last mentioned case, has a
very important bearing on this question.
The Constitution OF Mississippi, adopted
on the 26th day Of October, 1882, provided,
THE introduction of slaves into this State,
as merchandise or for sale, shall be pro-
hibited from and after the first day OF May,
1853, provided, that the actual settler, or
settlers, shall not be prohibited from pur-
chasing Slaves il any State OF this Union,
and bringing them into this State for their
own individual Use. until the year 1915.
In q suit brought in the Circuit Court OF
the United States for the Eastern District
Of guiSana, and afterwards appealed TO
the Supreme Court of the United States,
a question arose as to whether or not this
provision of the Constitution was Selt-eX-
ecuting and took effect without the aid OF
legislation, and it was decided by that high
est court in the land that the provision was
merely directory TO the Legislature, anu
was not operative as law of prohibition,
,royrio riqore Judge Thompson, in deliv-
ering the opinion OF the court, says: at is
unreasonable to suppose that il this prohi'
bitiOn was intended, per Sc to operate with
out any legislative aid, that there would
not have been some guards and checks
thrown around il TO ensure its execution
THIS reasoning applies with ten fold force
to the question under consideration, To
what it in did that case. Here we have two
sections Of the constitution, one OF which
expressly imposes duty on the LagiSla-
ture to change the day and month of the
election at its will and pleasure. There
We have positive prohibition in the con
stitution OF the importation OF slaves into
the State for sale after the lst day of May
1888, without any reference to the Legisla
ture whatever. And yet the court held
that the provision of the constitution die
not operate cr.proprio rigore for the reason
among Others, that il made no provisions
to insure it's execution. And the cOur
adds But if it is considered merely direc
tory to the Legislature, it is open to al
necessary provisions to accomplish the enc
intended. And the same is true in regarC
TO this amendment.
The very principle involved in this dis
cussion was before the court in the case o.
the Supervisors, &c. VS. Start, .. West Va.
p. 903. This was proceeding to condemn
land tor public road, in which it was
claimed by the land owner that under the
provision of section ., of article 3, of the
constitution he was entitled Il
have the question OF damages tried by
Jury, although no act OF the Legislature
had been passed to carry that provision OF
the constitution into effect. 1t was con-
tended that the section named, so far as il
gave tie right OF trial by jury, operated
Sr pJOpriO yjgOre, but the court decided 9th
eryise. Judge Moore, in declaring the