Year: 1869

stitution forbids the officers of election, the
canvassers, or even the assessors to be ap-
pointed by board constituted by law,
whether it be Board of Aldermen or a
Board of Commissioners? Let the consti-
tuition itself answer. Article 6, Section s /:
'.AlI officers whose election or appointment
is not provided for in this constitution, shall
be elected or appointed as shall be directed
by law" Here then is law made under
the direct sanction of the people themselves,
expressly given in the constitution. But it
is said that the law is unconstitutional be-
cause the board of appointment in this case
(the aldermen) have majority in it of per-
sons belonging to a particular political par
ty, and the argument omitted to say major
ity which is the result of popular elections.
This ground of nconstitutionality of law
because board created by it Is composed
of individuals of different political opinipes,
with majority in a certain way, the result
of popular election, seems to belong to an
age fruitful in discovery. How is it posi-
bic that any board composed of men can be
organized without majority in political
opinion in one way or another? TO the
party in the minority such board must
always be unconstitutional, il such argu-
ments were to prevail.


But clearly it Is not unconstitutional and
not unfair to designate board Of gentle
men chosen by the people to administer the
laws among them. If these men be unfit
geutsit is not the fault of the Legislature, but
of people who will elect such men to admin
lister justice TO themselves. The law binds
the Board of Aldermen to appoint the Off
GERS of the election, so that the political
party having a majority in the election divi-
sion shall have a majority of the board. 1t
requires the canvassers to be appointed so
that each party will be represented in the
several boards of canvassers, adding a su-
pervising power in the courts to correct er-
rors What fair mind can pronounce this
an abuse of legislative power, so gross, so
palpable, and so plain as to become an un-
constitutional act? Said Chief Justice Mar
shall: ''All power may be abused, and il
the fear of its abuse is to constitute an argu-
ment against its existence, it might be arg
ed against that which is universally acknowl-
edged and which is indispensable to pub
lie safety. ."-Broacn Us. Maryland, II


Wheaton, AL.


The argument that the aldermen, being
judicial officers, cannot be compelled to act,
is of no weight, and was so regarded by the
whole Court in Page ct al. rs. Allen ct al
decided last year. The position would over
turn our own acts as judges in the appoint
ment of prison, penitentiary, and building
inspectors, commissioners to take testimony,
and other officers. The practice is sanction
ed by century of use. The lower courts
fill all vacancies in county and township of
ficers, such as comm issioners, auditors. sur
veyers, district attorneys, constables, super
visors, end overseers Of the poor The as
sociate justices constitute part of the mill
tary boards under the bounty and pension
laws. and the boards for the revision of tax
es and the judges of the judicial districts
appointed the revenue commissioners. Be-
sides, the aldermen have not refused, and it
not likely they will refuse and what au-
thority have these plaintiffs to gainsay their
right to act, or to put in refusal onrheir
behalf? The truth is the whole weight of
this objection consists in the fact that the
majority of the board, representing the pop
ular majority, hold opposite opinions to the


l.. I - II
lar cards turns up a new majority, | suppose
gentlemen of the opposite party will use the
same argument.


The next objection urged, with equal, per-
haps greater zeal, is that there is no provis-
ion for assessing persons in the city after the
20lh of September. The purpose of this
regulation is obvious 1t is to cut off the
unqualified persons who are imported into
the district to displace the votes of the true
electors, by taking period for the latest
assessment sufficiently distant from the day
of election to render it announcement and
difficult for these hirelings to obtain false
qualification But what clause of the con-
stitution requires the assessment of taxes to
be extended to any period? 1t is new
discovery that the system of taxation must
be subordinate to that OF election. Neither
the constitution of 1890 nor that of 1888
prescribed any time for the exercise of the
mowers of taxation, though both use the
paun,eut of tax within two years as the
means of discovering the true elector, and
as an evidence of his residence and member
ship in the community. Ii is great error
in constitutional law to mistake restriction
for an injunction. When the constitution
provides that the elector shall have paid
tcithin ttco gears State or county tax,
which shall have been assessed at least ten
days before the election, its purpose was to
restrain the assessment so that voters might
not be fraudulently made at the very polls
but it did not require the tax power to be
altered so that the assessments should be
compulsory down to the tenth day before
the election. There is no express injunc-
ton, and it is not even a fair implication
The rights of the true electors were well
protected when they were allowed two years
pending for the payment of tax to secure
thar qualification a period incInd;nn oor