The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-05-09
A RESTORATION.
OLD REGISTRARS IN AGAIN.
Supreme Court OF Appeals Decide that the
Electoral Board Law IL Unconstitutional,
Nx.ll

Null and Void.
The Supreme Court OF Appeals yes,er-
day decided that the act OF Assembly pro-
viding that all registrars and judges and
commissioners OF election should be chosen
by electoral boards composed OF free
holders was unconstitutional, null and
void.
As q matter OF fact, though of course It
did not appear In this proceeding, the use
OF the word freeh0lders" was uninten-
tlonal. Several sections OF the new law
were copied from the Code Of 1860. and un-
fortunately this word was retained aud at
tracted no public attention until the bill
became a law over the Governors veto.
The Senate then passed q bill amending Che
law by striking out the word "freehold-
ers." That was sent TO the House In due
season, but there 1t was either lost or ig-
nored until the closing days OF the session,
and It never became law. In the mean
time, however, the General Assembly had
elected the electoral boards. Now on ac-
count OF "freeholders the whole law Is
set aside. In near about bali the coun-
ties OF the State we will lose little or
nothing by this decision. We are any,
how much better off as to election ma
chinery than we were last year when we
defeated the enemy. Besides that, a ma
iority OF the State Canyasslng Board are
Democrats.
The Opinion.
Judge Lewis rendered the opinion OF the
Court as follows:
Black rs. Tro,oer and Others.
This Is petition for a writ Of man Sanlus. The
controversy involves the title TO the office of regis
trar OF the First precinct OF the First ward of the
city Of Norfolk. The petitioners ciaim is found.
ed upon an appointment by the Corporation Court
OF that city, made on the 4th day OF February,
1884. The respondent, Trower, claims by virtue
OF an appointment of the Electoral Board of that
city. made on the - day of March. 1884. The
members composing that Board were chosen by
pursuant 70 the provisions OF an act entitled an
act TO provide for the manner Of choosing regic-
trars judges, and clerks of election" &c. which
went into operation on the l4th day OF February,
1SS4.-Acts of Assembly 1sS3-'S4, page $50, &C.
The first section of the act enacts that the Leglsa-
ture shall once in every -four years elect three
qualified voters, who shall be |reeholders and
residents of each county and city for which
they are appointed, TO be known as the County
or City Electoral Board and who shall take
the usual oath or office prescribed for city
and county officers. And by subsequent sections
Is propi1ed Una, ti rne bUIros m nay oe eIeeGd 10y
sembly, and that It shall be their duty TO appoint
for their respective cities and counties the regis
trars and other election officers provided for by
the act. This act is assaled by the petitioner as
unconstitutional because If the freehold qualiica
tion II prescrlbes for members Of the Electoral
Boards: And this Is the question we have now to
determine.
The Constitution declares that all citizens OF
/ the State possess equal civil and political
| rights and public privileges" and the language
| thus employed is plainly intended not as idle or
empty words, but TO express a principle which
tself for II is further ordained that the rights
thus declared exist shall not be violated on any
pretence whatever" Constitution, article /. 1t
Is manifest therefore, that the trainers Of the Con-
stitution, and those who adopted IT. intended TO
establish government not republican In form
and with ample guarantees for the equal protec-
ton Of the rights II was designed 10 secure. Per-
feet equality in respect TO public rights and priv
which discriminates in favor OF one class against
other classes Of citizens cannot be sustained, un-
less authorized by the Constitution, either ex-
pressly or by clear implication. For If right con-
ferred bv the Constitution were not beyond the
reach of legislative interference the cOnstitu-
tOnal guarantees would be dead letter. and the
Legislature, instead Of being controlled by would
be superior to, the Constitution, and unrcstrained
In the exercise of its power II Is for this reason
that the Constitution defines the powers of the
rious branches of the government and prescribeS
limits beyond which neither may pass. Upon this
subject the rule or construction is laid down by
| Judge Cooley in these words d" Whom the Consti-
tuition dehnes The circumstances under which a
| right may he exercised or penalty imposed, the
| specification is an implied prohibition against
legislative interference to add to the condition or
to extend the penalty to other cases. COnst. Lin.
ns ana To1g IN. 5ne cases to %hss
decided in 1924. In that case the Chancellor de-
| lvering the opinion Of the Court Errors OF New
York said: "The Legislature cannot establish ar
bitrary exclusions from Office, or any general regu.
| laton requiring qualifications which the Consti-
tuition has not required. II, for example, IT should
sons of a particular religious sect, should
be ineligible 10 public trusts, or that all
persons not possessing certain amount of
property, shou ID be excluded, any such regulation
| would be an infringement OF the Constitution ;
and IL would be so because, should II prevail, IL
would be in effect an teralion of the Constitu-
nv the Constitution Of this State, after prescrib-
ing thc qualifications for the elective franchise,
shall be eligible to any onlce within the gift Of the
people except as restricted In this Constitution.
Article Ill.,. section p freehold qualification Is
sot required of voters, Is required by the act in
question Of the members Of Electoral Boards and
| the question is, whether this requirement. OF the
net Is in conflict with the Constituton Ii Is con-
Tended that an Office within the gift of the peo-
ME is an elective oiice-an Office TO be filled by
popular vote, and not one 10 be filled by the Gene
raj Assembly. But this, we think, Is an erroneous
construction, and contrary TO the intention or the
| trainers of the Constitution. The words " the
/ Deopie are not unfrequenlly employed In differ
ent senses-in some eases 10 s,gmIy IN tle Iualihed
body OF the inhabitants OF the state or the State
| I'm lis sovereign capacity. An instance OF the lat
ter kind is found In the preamble 70 the Constitu-
| tion of the United States, which declares that
| swe, the people Of the United Stites, I'm
order to form a more perfect Union do
words the people " do not refer 10 the quail
fed voters Of the country, for the Constitution
| was never submitted for adoption u popular
vote hnt 10 the whole body of the nation at large.
| Tho meaning Of the words must therefore be de-
termiued by the circumstances OF each particular
| case In which they are used. Ana IL Is fact TO
he observed in this connection that the Con- titu-
| ton nowhere refers 10 a popular election Tor the
choice Of officers as an election by the people; but
in all such as elections by the volers orqnai-
20 Isl.rtot "a 0p6
of the Governor and Lieutenant-GOyernor shall
\ be by the voters, the Atorney-General by the
oualifed voters Of the Con- umODweath. and the
CITY and county officers by the qualified voters of
the cities aud counties. strictly sDeaklhR' tere
is no such thing ar eleclioa by the people, Tor
enly small percentage Of the people are voters,
and there Is no ONCE within the gift
OF the people, except In the sense In which those
wor.s are used 10 denote me C0nSHptt0n, thc
Common icealth. or the GOrernment or the Stdte
There is nothing Ia the Constitution upon which
the contention Of the respondents can be reason
FOR II is hardly reasonable TO suppose that the
| trainers OF the Constitution, with the declared
objects which they had In view, and who %ere
Careful 10 prescribe quail hcatons for those Offices
~ no flled by the qualified voters, intended TO
empower the LEGISLATURE TO prescribe such guam,
cstons a. Il Pleaeu ior Inoss Hsseby Is Is easy 10
COO how II the construction commended for were
sustained. the Legislature might, oy the crestion
v g., he Constituiion effectually confine withln
comparatiyelv small circle large part OF .he
powers of the state government: ana SO II & tne
Legislature may declare that none 0ut Iree-
$780, All no chosen as members OF the Electo-
yi' raj Boards, IL may declare that none shall be
chosen whose freehold estates are OF less value
Than Al OO, 600. or that only persons OF certaln
color or class or profession shall be chosen, ana
thus In an Important particular destroy the equal
iIv of political rights guaranteed 10y ,he
ZION We DO nof'mesn 10 assert tbat tie Lexisia-
tuTe NAV not In anv case prescribe quai, ,fcatlons
for oiice In addition TO those OF 9nsiined% % SEer
Thus II may require that the once oi uoide
hall I'm Alladh a
that Inc State Board of Health shall be composed
of physiclans or that the Judge OF city conf sh