Rison v. Farr

by the Arkansas Supreme Court

Supreme Court of Arkansas

21 Ark. 161

RISON ET AL.  v.  FARR

Appeal from Pulaski Circuit Court

Legislation is the exercise of sovereign power; but that power is defined to a certainty by the written constitutions of the several states, which determine the extent and limit of the powers delegated to the government and retained by the people.

The constitution of this state is the supreme law of the land, under the constitution of the United States; and is of binding force and obligation upon all departments of the government, and assigns the sphere within which each must act, and establishes bounds beyond which neither can go.

The courts of justice have the right, and are in duty bound, to test every law by the constitution as the fundamental and paramount law of the land, and to declare every act of the legislature contrary to the true intent and meaning of the constitution null and void, and of no effect whatever.

Section 2, Article 4, of the constitution of this state, fixes the qualifications and determines who shall be deemed qualified voters in this state, in direct, positive and affirmative terms, and these qualifications cannot be added to by legislative enactment.

A law requiring that the voter shall swear to support the constitution of the United States, does not restrict the right to vote, adds nothing to the qualifications required by the constitution, requires nothing more than the voter is required by law to do, and is free from the objections of unconstitutionality, and is a valid law.

But to add to the qualifications prescribed by the constitution—to require that the citizen shall swear that he has not done a specified act—that he shall purge himself by oath, of all crimes or any particular crime; otherwise, to deprive him Of the elective franchise, is not within the powers delegated to the legislature; and therefore, so much of the 6th section of the act approved May 31st, 1864, entitled "An Act to provide for the manner of holding elections," as prescribes such oath as a pre-requisite to voting, is directly in conflict with section 2, article 4, of the constitution, and void.

The rights and privileges of the citizen cannot be taken away by legislative enactment, directly or indirectly, or otherwise than by due process of law, that is, by the judgment of a court of competent jurisdiction.

The pardon of the President of the United States relieves the person pardoned from all penalties attached to the specified act, and restores him to his former rights and privileges.

A plea bad in part is bad for the whole.

Error to Pulaski Circuit Court.

Hon. LIBERTY BARTLETT, Circuit Judge.

Argument for Plaintiffs

R. C. NEWTON, for plaintiffs.

In construing the constitution in reference to the qualifications of electors, the intention of the convention may well be inquired into; and the intention of the convention not to confine, absolutely, the qualifications to those enumerated in the constitution may well be inferred from the fact that, in an election directed by the convention, other qualifications were prescribed. Sec. 2, article IV, State Constitution. Also, Schedule to Constitution, sec. 1.

It is submitted that all persons proscribed by the act—(Pamph. Acts, 1861, p. 48,) had voluntarily renounced their allegiance to the United States; and had ceased to be citizens thereof; and were not therefore, qualified electors under the state constitution.

But if the law be unconstitutional, still the ministerial officers were bound to conform to the provisions of the act of the legislature, and are not responsible in damages to the plaintiff—the act of the legislature being presumed to be valid until pronounced unconstitutional by the proper tribunal.

Argument for Defendant

CLARK, WILLIAMS & MARTIN and ENGLISH & WILSHIRE, for defendant.

The constitution, by article III, section 2, having fixed the qualifications of electors, it is not within the power of the legislature to add to or diminish those qualifications. When the requirements of the constitution are passed over, there is no limit to the power of the legislature to prescribe additional qualifications.

That the framers of the present constitution, which was adopted in the midst of the rebellion, did not intend to invest the legislature with the power of adding to the qualifications of electors the provisions of the test oath pleaded in defence, is clearly apparent from sec. 12, art. IV, requiring the exclusion from the right of suffrage, etc., of persons guilty of certain crimes. But before the vote of any one can be legally rejected because of the commission of crime, he must have been duly convicted according to the forms of law. Amend. Con. U. S., art. V; 10th and 14th secs., bill of rights; sec. 8, art. VII, Cons. A man can be deprived, criminally, of his property, liberty or franchises only by indictment, etc., and trial by jury. It cannot be done by mere act of the legislature, or by test oaths. 1 Kent's Com., 12; 2 ib., 13; Smith on Cons. & Stat. Law, 722, Taylor vs. Porter, 4 Hill R., 145; Coke's Inst., 45-50; 10 Yerg., 59; 3 Story on Cons., 264-661.

The test oath for the refusal to take which the defendant was deprived, by the judges of election of his right to vote, contains not only a provision that he will support the constitution of the United States, to which there is no objection; but also, that he has not committed acts which would constitute a crime against the United States; for which he can only be held responsible by criminal prosecution in the courts of the United States; and also that he has not committed an act, which would be a crime against the state, and for which he can only be punished by the laws of the state by a criminal prosecution in her court.

That the act under which the justification is relied on, is palpably in conflict with the constitution of the state and null and void, and should have been so treated by the judges of election, we most respectfully submit, does not admit of a doubt.

An act of the legislature in contravention of the constitution is no law at all, and furnishes no justification to any officer or individual for his conduct. 1 Cranch., 175; 2 Dallas, 309.

[Opinion of the Court by Chief Justice THOMAS D. W. YONLEY.]