Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1889-06-27

their scope and effect may be Justly de.
sernined, should be studied In the light
of those vital principles of free govern
ment aod inherent popular right, which
distinctiyely underlie and uphold our
American liberty.
The primary function Of written con-
atltutions Is rather the recognition and
regulation Of pre.existing rights funda-
mental In their nature, and taeir protec
tion against assault or enetoRehment on
the part of the State, than the creation OF
new rights
Under the constitution Of Delaware this
right Of suffrage, although its exercise
depends upon compliance with certain
constitutional prerequisites or conditions,
Is vested In the male citizens OF tho State,
OF the sgs of 81 years or upwards, except
idiots, insane persons, paupers aud per-
sons onVioted OF crime desmei by law
felony, and this right can bedivested only
through forfeiture as punishment for
| crime judiclally ascertained.
The organic aw OF this State, in &C.
oordsnos with the principles of free gov
eminent already discussed, has dsalarei
with exactness what class of individuals
are the depositaries OF the sovereignty Of
the people, aud what classes OF iudYid.
uals are excluded from the right OF selt
government
The class thus vested with this right ia
distinctly defined by the constitution and
no power exists in the Legislature either
TO increase or diminish this GLASS.
The right can be lost only through for.
feiture as o punishment for crime
EAU TIA l,as ,tv,lE
OF q means by which the right may be
forfeited is constitutional prohibition
against the forfeiture of the right by any
other means.
Every male citizen OF the State OF the
age of 81 years or upwards, whose right
of suffrage has not been forfeited IS o
punishment for crime, has oonstitu-
tional right to comply with the const tn.
tional prerequisites or conditions for his
exercise for the right OF suffrage.
When a constitution clearly defines the
GLASS Of citizens whom 1t insiders Ct to
be the depositaries OF the sovereignty of
the State and presoribes certain pre-
requisites or conditions on their part for
the exercise of that sovereignty, a psych1-
logical phenomenon would indeed be pre-
scented IL the trainers OF that const tuition
did not intend that all citizens embraced
in that class should have the right to
comply with such Prerequisites or con.
! diti0ns.
And II such be tho intention OF the
! constitution, it inevitably follows that
! the Lsgislature-the mere creature and
servant of the oonstitution-canno
] directly or indirectly defeat or thwar
that intention.
J Every male citizen of the State Of th,
3 age of % yaars or upwards, who IL no
I excepted by the constitution from TIL
. voting class, and who has not been con
I yicted Of felony, has constitutions
4 right to bs assessed for county tax AMI
3 to qualify himself to enjoy the right o
Z an slsstor by the payment OF that tax II
n each of the two years next preceding thu
= election.
Tue constitutional prerequisite or con
d ditioo--"Having within two years mex
L before the election, paid q county tax
Il which shall have been assessed at leas
% six months before the election, "--con
It templates and intends that the citizei
o shall have the right to pay county co.
n in each or either of these two years,
o This constitutional provision must b
70 read in tho light furnished by the syater
n OF taxation In existence in Delaware q
y the time Of its adoption,
l. That system. like the system now 4
/, force, was not one Of biennial, but of On
II nual taxation.
y The legislature while II may provid
d reasonable regulations for the exerois
IS Of the elective franchise, designed t
. knnsIfkafa he faip fran nNHarl
and convenient conduct Of elections hs
3, no constitutional authority to deny
,r abrldge, impair or restrain the right [
IN suffrage, or add to or take from the cor
Or stitutional qualifications of electors, Q
ut unnecessarily impede, embarrrass
IN render more difficult the enjoyment 9
n the right.
O. The legislature having no constitutions
a. power to deny, abridge or embarrass Il
Df exercise OF the elective franchise by an
N direct legislation such denial, abridgmet
1e or embarrassment cannot constitutional
IN be effected through indirect Legislation
a although directly relating to other sui
ne iectp than the right OF suffrage.
ID The provisions of the legislation
1g 1874 upon which the defendants rely OIL
TO the constitutional qualifications I
ty electors, unnecessarily impede and on
1t barrass the enjoyment Of the right I
suffrage, and sbridge and impair tn
so right. and arc therefore demonstrations
To- The provisions of the legislation
lis 1879 upon which the defendants rely q
It's yloIatiye Of the constitutional guaran
ty that tall elections shall be free 81
~ euual.n and are therefore unconstit
tional.
o. The provisions Of the legislation
or 1878 upon which the defendants re
Ia bsipe unconstitutional. the defendant
nd are personally liable In this action.
ms THE OTHER SIDE,
,le Tn the afternoon John II. Rodney, Es'
M. hogan his argument for the defendan
The questions raised for hearing in u
80 conrt, he held, are:
IN. 1. Whether the enactment OF the p
vision of the act of April 10th, 1873,
va. valid and constitutional exercise of L
it isiative power.
.or q whether members of the levy COZ
oil can be held personally liable IN damat
.Qe for the action of the body OF Wnloh To
are members.
az Each of these questions is OF the MI
SO serious consequence and merits the m
careful consideration OF court and col
oil sci. This is the more so because each
,iy- these questions as 1t arises in this case
largely one OF new impression, aud m
lly be- decided rather with reference
,nr fundamental principles, than III
az. authorities applying directly to the ca
Upon these questions Mr.. RodI
Of arauod at length, closing with q recapi
10 lation of the following points:
tbn /. That the court viii with great o
"a tion and reluctance decide that an act
,ye' ~ oisIsture is void only doing so whei
are il in fragrant aud pslpable repugnanoe
Nae the Fundamental law--the motives OF
but i gislature not TO be drawn in questl
full q. That there IS no provision OF