Letter from Mississippi Attorney General George E. Harris to Mississippi Lieutenant Governor A. K. Davis; July 7, 1875

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Letter from Mississippi Attorney General George E. Harris to Mississippi Lieutenant Governor A. K. Davis; July 7, 1875

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People

Caldwell, Unknown Cooley, Unknown Davis, A. K. (Alexander Kelso), -1884 Fordyce, Unknown Godman, James Harper, 1808-1891 Harris, George E. (George Emrick), 1827-1911 McCulloch, Unknown Miller, Unknown Packer, A. G.Redding, B. B. (Benjamin Barnard), 1824-1882 Sherman, William Story, Charles R.

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Crime Legislation. Mississippi Political Office--Appointment to office Taxation Taxation--Exemption Voting Voting--Voter registration

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California--Legislature Courts and Judicial Systems Courts and Judicial Systems--Chancery Courts Courts and Judicial Systems--Circuit Courts Indiana--General Assembly Mississippi--Executive Department Mississippi--Legislature Mississippi--Legislature. House of Representatives Mississippi--Legislature. Senate Ohio--General Assembly

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Publishers and Printers Publishers and Printers--Van Beek, Barnard & Tinsley, Stationers (Saint Louis, Mo.)

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Attorneys General Clerks Judges Law Enforcement Law Enforcement--Sheriffs Secretaries

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California Indiana Mississippi--Hinds County. Jackson Missouri--Independent City. Saint Louis Ohio

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Mental Illness Native Americans

Page 1

[image: eagle holding shield]
Van Beek, Barnard & Tinsley, Stationers, St. Louis.

Opinion of the Attorney=Genal on the subject of Registration. E

Attorney General's Office,
JACKSON, MISS. July 7, 1875.

(Sol [Bain?)

[Prevenue?]
Copy [?]

To his Excellency
A. K. Davis Lt. Gov^r
and Acting Gov^r,

Sir:

Your communi-cation of the 5^th relative to the registration law of March the 6, 1875 to hand, propounding the following interrogatory, to wit:

"Are voters who have been legally registered heretofore required to register under said act before they are entitled to vote."

The constitution Art VII Sec. 2. provides that "all male inhabitants of the State, except idiots and insane persons, and indians not taxed, citizens of the United States, or naturalized, twenty one years old and upwards, who have resided in this State

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Six months, and in the county one month next preceding the Political elections--Mississippi|election]], at which said inhabitant, offers to vote and who are legally registered according to the requirements of Section three of this article, and who are not disqualified by reason of any crime, are declared to be qualified electors."

Section three of the same article provides as follows. "The Legislature shall provide by law for the registration of all persons entitled to vote at any election, and all persons entitled to register shall take and subscribe to the following oath, or affirmation" and then follows the form of oath prescribed.

Thus it will be seen that the constitution has confered upon the Legislature, the power to provide by by law for the registration of all legal voters. The legislature, in the exercise of the power so confered gave us a chapter in the Code of 1871 chapter 5, §§. 340 to 355 inclusive, consti-tuting the Sheriff, chancery clerk and

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President of the Board of Supervisors, a Board of Commissioners to appoint three suitable ~~persons~~ registrars in each county

Sec. 343 provides that, "Such Board of registration shall determine the most Suitable time and place for the regis=tration of Such voters, and shall appoint a period of not less than three days and not more than five days according to the number of voters and the time required for each, at the most public and convenient place for such voters to appear and register therein, terminating the registration at the court-House or county seat in said county, with five days to complete such registration."

This gave the Board of regis=trars full discretion as to the time and place, and gave, at each place from three to five days, and five at the county seat. The act of Apl 15, 18753 amends the code in many particulars. It abolishes the Board

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of commissioners created by the code and confered their duties and powers upon the circuit Judges, chancellors and Sheriffs whose duty it shall be to appoint the registrars for the respective counties.

Section 2. of the act of April 15, 1873 required the registrars to register only at the county seat, and to make only a revision of the rolls. It provides, as follows:

"That the registrars appointed under this act shall meet at the county seat of their respective counties, on a day at least seventeen days prior to any gener=al election, Sundays excepted, and shall continue in session fifteen days, for the purpose of revising the regis=tration list of their county, and registering such persons as may have become qualified, such session to close not more than two days prior to the election. Provided, that this act shall not be so construed, as to require a general registration until after the next general election"

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This act requires a session of the Board of registrars for fifteen days, at the county seat prior to any general election, for the purpose of revision, and then provides that no general registration shall be required until after the next general election. This act was approved on April 15, 1873, and the next general election was held in November 1873, and although it makes no provision for a general registration, yet requires the Board to meet and hold their session of fifteen days prior to any general election. This seemed to be in conflict with the code of 1871 §§. 343. and 351, and section 10. of the act repeals all acts in conflict with it. Thus it would seem that the code supra, was repealed and yet no provision made for a general registration, and the general registration is merely alluded to, as being authorized or directed after the next general election.

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This left the law upon the subject of registration of voters in such inextricable confusion as to invoke the action of the Legislature, which resulted in the act of March 6, 1875, act of 1875 p.p. 164 & 165, "an act to regulate the registration of voters in the state, and to repeal section 2 of an act approved April 15, 1873" The first section of which provides,

"That the registrars of each county shall meet at some central and convenient place in each Supervisors district to be fixed by them, and remain there not over two days, and register all those legally entitled to vote, provided, that at the county seat they shall hold three days to register all that may have been omitted in any of the districts, closing the registration two days before the day of the election"

Sec. 2 requires the notice to be given, and sec. 3 repeals all acts in conflict with it, and give it force from its passage

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It gives only two days in each Supervisors district, and three days at the county seat. It repeals sec. 2. of the act of April 15, 1873, and might revive the provisions of the code of 1871, but it is in conflict with the code, and repeals all acts that it comes in conflict with, and requires a general registration. It does not prescribe the time for the meetings of the Board, except that the registration shall close two days before the day of the election, and whether that "election" is general or Special, we are left to conjecture. But it would seem that the Legislature has full power over the whole subject, and the passage of the act of March 6, 1875, was but the exercise of a legitimate power confered by the constitution, and is valid as a constitutional act, and requires a general registra-tion prior to each general election. If it has the force of a law

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But it has been suggested that this act did not pass both houses of the legislature, and although approved by the Governor, did not become a law, and is now a nullity, and this involves a more serious question. We are seldom called upon to investigate the proceedings of the legislature to ascertain if their action has been regular in the passage of laws, yet the courts of the country will do so, when a proper case arises. The best, and probably the ^only^ means, of arriving at the history of this act, is the journals of the two Houses, and by consulting the journals, we find that on the 2^nd day of March 1875 the bill was presented by Mr Caldwell in the Senate, it was read a first and second time, and under a Susp-ension of the rules refered to the committee on registration and elections (Senate Journal p 381) on the 4^th of March that committee reported the bill back to the Senate without

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recommendation, (S. J. page 385)

On March 6^th this bill was taken up, read the third time, ordered engrossed and passed, title standing as stated (S. J. page 416) on the same day. It was reported by the Secretary of the Senate, to the House as having passed the Senate. (House Journal page 510) At the evening session of the same day it was taken up in the House and indefinitely postponed (H. J. 514 On March 6, 1875 it was reported back to the senate, by the clerk of the House as having passed the House (S. J. 418) On the same day it was reported to the House by the committee on enrolled bills as correctly enrolled and presented to the Governor for his signature (H. J. 523) again on the same day (March 6, 1875) it was returned to the senate by the Governor approved. (S. J. 426) It is published in the Pamph-let acts of 1875 pp 164 & 165.

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(10

This is a brief, and I think a full history of the bill as shown by the Journals, and the question is, Is this a valid law? The record presents a mystery which I have been unable to solve, but we must take the history as we find it.

The constitution Art IV §. 14 requires each House to publish from time to time, a Journal of their pro=ceedings, except such parts as may in their opinion require secrecy. The same article §. 24 provides, that "Every bill which has passed both houses, shall be presented to the Governor of the State" x x x x x x

It must pass both houses before it can become a law, but is it indispensible that the journals shall show that fact affirmatively?

Judge Cooley in his constitutional limi-tations says, Each house keeps a Journal of its proceeding, which is a public record, and of which the court

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(11

are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of of legal functions, every reasonable pre-sumption is to be made in favor of the action of the legislative body.

It would seem that if the journal was silent as to any partic=ular requisite in the passage of the bill, still the presumption might be indulged, in the absence of anything to rebut the presumption, and in this case the journal is not only silent as to the passage of the bill by the House, but we find that

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on this 5^th of Mch. at the evening session, and the day before the adjournment the bill was indifinitely postponed, and this would seem to negative the presump-tion of its passage, notwithstanding it was afterwards proceeded with, as though it had passed the House.

In Miller v the state of Ohio Repts 475 The court says: "No bill can become a law without receiving the number of votes required by the constitution and if it were found, by an inspec-tion of the legislative journals, that what purports to be a law upon the statute books was not passed by the requisite number of votes it might possibly be the duty, of the Court to treat it as a nullity. But it does not follow that an act that was passed by a constitutional majority is invalid, because in its consideration, the assembly did not strictly observe the mode of procedure prescribed by the constitution

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There are provisions in that instrument that are directory in their character, the observance of which by the assembly is seceded by their sense of duty and official oaths, and not by any supervisory power of the courts

The case of Fordyce v Goodman auditor of state, 2 Ohio. p 1. was the case of ~~case of~~ a claim against the state and allowed by the Legislature, and in that case, the court says:

"Upon the question whether such claims have been allowed by the number of members required by the constitution the legislative journals must furnish the appropriate evidence.

In the case of M^cCulloch v The state 11 Indiana Repts 425, The court says:

"Where the Legislative journals are silent touching a step in the proceed-ings which the constitution requires to be taken, it will be presumed by the Courts, that the constitutional requirements was complied with." This would be at most but a presumption, liable to be rebutted.

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In the case of Sherman v. Story 30 ~~the~~ California 253, the court say: "an act of the legislature properly enrolled, authenticated and deposited with the secretary of state, is a record which is conclusive evidence of the passage of the act, and that the act passed as enrolled"

Although this decision was ren=dered as late as July 1866, It is certainly not sustained by authority, but in conflict with the leading cases on the subject. The better doctrine seems to be, that where the constitution requires a journal to be kept, it is not indispensible that every step in the passage of a bill shall be recorded, but that we may indulge in a presumption in favor of the legislative action. But if the enrollment of a bill was to be regarded as sufficient ^presumptive^ evidence of its passage, still that presumption is rebutted and broken down

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by the record evidence that the bill was "indefinitely postpone" on the evening before adjournment, and near the end of the labors of the Session, in the usual press of business that is always crowding the last few hours of the Session, by members who desire to accomplish some legislation which they regard as important.

In order to the passage of this bill, it was necessa-ry to have ^first^ reconsidered the action of the House, whereby the bill was indefinitely postponed, and of this we have no evidence, and I think it more probably that the clerk should have made a mistake, as to the action of the House upon the bill, in the confu=sion and press of business.

From the evidence furnished by the journals of the House

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I think the presumption in favor of the validity of the act is rebutted by what does appear affirmatively on the face of the journal, and that the act is void, and never had the force of law, though I must confess that the question is not free from doubt.

If correct in this conclu=sion, the act of Apl 15, 1873 is still in force, and as we have seen, it repeals Sections 343 & 351 of the code, the only law that directs a general registration while it fails to provide for any registration except fifteen days at the county seat, for the sole purpose of revising the lists, and ^this prior to any general election^ This act certainly repeals the code of 1871 upon the subject because it repeals all laws in conflict with it

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and it most clearly con-flicts with the code, supra, and it seems that we have no general registration law unless we could construe the act of 1873 to require it in the fifteen days at the county seat.

It is much to be regretted that we find the registration law in such inextricable confusion.

Very Respectfully

G. E. Harris
Attorney General

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EXECUTIVE OFFICE,
STATE OF MISSISSIPPI.
Hinds County.

From Hon G. E. Harris.
Address Jackson
Dated July 7 1875.
Received _" 9 _"
Answered [gap]

SUBJECT:

Opinion of Attorney General on the Registration Law of March 6^th 1875.

A. K. DAVIS,
Lt.=Gov. Acting Gov'r.

A. G. PACKER,
Private Secretary.