State v. Staten

• Decision Date: 30 April 1869
• Parties: The State v. Wm. Staten.
• Court: Tennessee Supreme Court

46 Tenn. 233

The State

v.Wm. Staten.

Supreme Court of Tennessee.

April Term, 1869.

FROM GIBSON.

There was a demurrer to the indictment in this case, which was allowed by the Court, at the March Term, 1868. The State appealed. Judge JOHN A. RODGERS, presiding.JOSEPH B. HEISKELL and THOMAS J. FREEMAN, for the Defendant.

THOS. H. COLDWELL, Attorney-general, for the State.

HENRY G. SMITH, J., delivered the opinion of the Court.

On the 10th day of December, 1867, the Commissioner of Registration, of Gibson County, registered the name of Wm. Staten, as a qualified voter, and issued to him a certificate that he was entitled to the privilege of the elective franchise, and authorized to exercise the same. On the 25th day of February, 1868, the Governor of the State issued his proclamation, reciting that “frauds and irregularities had intervened in the registration of voters in said county,” and declaring the registration of that county void, and setting it aside. On the 7th day of March, 1868, an election was held in said county for Sheriff of the county; and the said Staten, under color of the certificate issued to him, as aforesaid, and without any other certificate of registration or authority, cast his vote for Sheriff, at said election.

On the 26th day of March, 1868, the grand jurors of the county found a bill of indictment against said Staten, for illegal voting, which bill set forth the facts above recited.

To the indictment, the defendant put in a demurrer, assigning for cause of demurrer, that the facts set forth in the indictment do not constitute an indictable offense.

Upon this state of the pleadings, and upon the facts set forth, the question is, whether the Governor possessed the power to set aside and annul the registration, and thereby deprive the defendant of the elective franchise, and the right to vote in governmental elections, by virtue of his registration, and certificate of registration?

The positions and argument assumed and urged for the defendant, are: first, that the Acts of the General Assembly which bestow upon the Governor the power to set aside and annul the registration of voters, are repugnant to the Constitution of the State, and therefore void; and second, that the general franchise Act of February 25th, 1867, chapter 26, is likewise repugnant to the Constitution, and therefore void.

It is proper to state with some detail, the article of the Constitution, and the several Acts of the General Assembly, which are concerned in the questions in issue.

For the purpose of organizing anew the government of the State, which had been destroyed by the rebellion, the people of the State, on the 22d day of February, A. D., 1865, ordained and established divers amendments of the Constitution of the State. The 9th section of the amendments is as follows: “The qualification of voters, and the limitation of the elective franchise, may be determined by the General Assembly which shall first assemble under the amended Constitution.”

The General Assembly which first assembled under the amended Constitution, proceeded to enact, and did enact, on the 5th day of June, 1865, the Act, chapter 16, entitled “An Act to limit the Elective Franchise.” It is not material to the decision of the cause now under consideration, to state the provisions of this Act with particularity of detail. It is enough to state, that the first section of the Act declares that the persons who “shall be entitled to the privileges of the elective franchise,” are white citizens of twenty-one years years of age and upwards, who “entertained unconditional Union sentiments” “from the outbreak of the rebellion to the time of the passage of the Act;” and also, white male citizens who arrived to the age of twenty-one years after March 4th, 1865, and never engaged in armed rebellion against the United States; and also, loyal white citizens of the United States and of the county wherein they offer to vote, and who come from another State; and also, white citizens who served in the United States armies and were honorably discharged; and also, white citizens who were conscript by force into the Confederate army, and were Union men and loyal to the United States; and also, white men who voted in this State at the Presidential election of November, 1864, or who voted at the State election on the 22d of February, 1865, or at the election on the 4th of March, 1865; or who have taken the oath of allegiance to the United States and are known to the judges of the election to have been true friends to the United States, and would have voted at those elections had they been holden within their reach.

The 2d section of the Act denied the privilege of the elective franchise, for fifteen years, to divers classes of persons who had committed offensive acts of kind designated, in aid or countenance of the rebellion; and denied the exercise of the elective franchise, for five years, to divers other classes of persons implicated in divers designated ways, in the rebellion. It is unnecessary to describe these classes of disqualified persons, with further particularity.

The 6th section of the Act, enacts “that the Clerk of the County Court of each county, shall open and keep a registration of voters,” and ascertain by proof under oath, the persons entitled to vote under the provisions of the Act, and shall issue to such persons certificates of registration; and that no person shall be permitted to vote unless so registered.

The 9th section of the Act, declares that the power is reserved to alter, amend or change the provisions of the Act, at any time when the General Assembly which enacted it may be of opinion it is right and proper to do so.

Afterwards, at a subsequent session of the same General Assembly, and on the 3d day of May, 1866, An Act was enacted, to alter and amend the Act, of which the substance is above recited. This amendatory Act is chapter 33, of the session, and is entitled “An Act to alter and amend An Act, entitled ‘An Act to limit the Elective Franchise,’ passed June 5th, 1865.” This new Act enacts that every white male inhabitant of the State, of the age of twenty-one years, a citizen of the United States, and resident of the county wherein he may offer his vote, “shall be entitled to the privilege of the elective franchise, subject to the following exceptions and disqualifications.” The exceptions and disqualifications are, briefly stated, persons who have borne arms against the United States for the purpose of aiding the rebellion; or have “voluntarily given aid, comfort, countenance, counsel or encouragement to any rebellion; or have aided, countenanced or encouraged acts of hostility to the United States; and persons who have sought or voluntarily accepted any office, civil or military, or have attempted to exercise the functions of any office, civil or military, under the Confederate States or of any insurrectionary State, hostile to the United States, with intent or desire to aid said rebellion or insurrectionary authority; and persons who voluntarily supported any pretended government or authority hostile to the United States, “by contributions in money or property, by persuasion or influence, or in any other way whatever.” Some exceptions are made out of these several classes of disqualified persons. It is not necessary to designate them with further detail.

Other sections of the Act provide, that the Governor shall appoint a Commissioner of Registration for each and every county in the State, whose duty shall be, to ascertain by proof, and register the name of each and every qualified voter, and issue to each a certificate that he is entitled to the privilege of the elective franchise. The proof required, with few exceptions, is the evidence of two competent witnesses, known to the Commissioner to have been at all times unconditionad Union men; that they, the witnesses, are personally acquainted with the person claiming to be registered, and “verily believe that he has not been guilty of any of the disqualifications” in the Act mentioned. This proof is to be by affidavit. The applicant is required to take and subscribe an affidavit, that he has never voluntarily borne arms with intent to aid the rebellion; nor, with such intent, at any time, given aid, comfort, counsel or encouragement to the rebellion; and that he has not ever sought or accepted or exercised the functions of any office, under the authority of the Confederate States or any insurrectionary State hostile to the United States, with the intent or desire to and the rebellion; and that he never gave a voluntary support to the Confederate States or any insurrectionary State. The Commissioner is authorized to take and hear proof against, as well as for, the applicant, and shall be the judge of the weight of the conflicting testimony, so far as the same may affect the issuance of certificates. No person shall be entitled to vote at any election, unless registered, and shall have received a certificate of registration. Any applicant or witness swearing falsely to any of the required facts, shall be guilty of perjury. Every violation of the Act is declared a misdemeanor, and punishable by indictment or presentment, and by fine, not less than ten nor over one hundred dollars, and by imprisonment at the discretion of the Court. Certificates issued under the original Act, are declared to be annulled. The original Act of June 5th, 1865, is declared to be repealed, and the new Act substituted in lieu of it.

Neither of these Acts of which the substantial provisions have been recited, conferred, nor did any other prior Act, in terms, confer, upon the Governor, or any other officer, the power to remove a Commissioner of Registration, or the power to abrogate the registration of a county, or to annul the certificate issued to a voter, or to take from a registered voter, the privilege of the elective franchise. Subsequently, however, to the passage of these Acts...