Sproule v. Fredericks

Woods, J., delivered the opinion of the court. The validity of the constitution of 1890 is called in question by counsel for appellee, in a supplemental brief filed recently, by consent of the court; and, as the challenge meets us on the threshold of the case, we proceed at once to its consideration briefly. In support of this view of the invalidity of the constitution, two propositions are asserted: 1. That a constitutional convention has power only to prepare or frame the body of a constitution, and that, when prepared or framed, the instrument is of no force or effect until ratified by a popular vote of the people; and the constitution of 1890, having never been submitted to or ratified by the people, is invalid. 2. That the changes made by the constitution in the basis of suffrage are violative of the act of congress re-admitting the state of Mississippi into the union in the year 1870, and invalidate that instrument. With confidence we reject both propositions as unsound. It will be remembered that the case at bar is free from the [904] difficulties which are supposed by some writers to arise out of a failure or refusal of a constitutional convention to yield to the direction of the legislature which summoned it that the constitution framed shall be submitted to the people for ratification. ''The act of the legislature which provided for the assembling of the constitutional convention of 1890, declared that the end sought to be attained, the work to be done, was the revision and amendment of the constitution of 1869, or the enactment of a new constitution; and it did not attempt to limit the powers of the convention by imposing, or seeking to impose, upon that sovereign tribunal the mere legislative will that the constitution enacted should be submitted to the people for ratification. We have simply the case of a constitutional convention enacting a new constitution, and putting it into effect without an appeal to the people, in strict conformity to the legislative call which assembled it. ' We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it for the purpose and the occasion by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is, that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the frame-work, but the particular fashioning of the parts of this frame-work is confided to the wisdom, the faithfulness and the patriotism of this great convocation representing the people in their sovereignty. The theorizing of the political essayist and the legal doctrinaire, by which it is sought to be established that the expression of the will of the legislature shall fetter and control the constitution-making body, or, in the absence of such at [905] tempted legislative direction, which seeks to teach that thej constitutional convention can only prepare the frame of a constitution and recommend it to the people for adoption, will be found to degrade this sovereign body below the level of the lowest tribunal clothed with ordinary legislative powers. This theorizing will reduce that great body, which, in our own state at least, since the beginning of its existence, except for a single brief interval in an exceptional period, by custom and the universal consent of the people, has been regarded as the repository and executor of the powers of sovereignty, to a mere commission, stripped of all power, and authorized only to make a recommendation. Whatever may be the safer and wiser course, as to putting into operation the completed work of the constitutional convention, the opinions of the political theorists which we are considering, will be found to rest upon grounds largely imaginary and fanciful. The constitutional convention itself, according to this theory, is looked upon with suspicion and distrust, as being the introduction into our governmental system of a revolutionary device; the chosen representatives of the sovereign people are dreaded, as likely to prove unfaithful to their mighty trust, and the liberties of the people are in danger of subversion. This succinct statement of the grounds, of these political theorists will demonstrate the unreal foundation upon which their teachings rest. The general judgment of the people of our own state has practically and strikingly repudiated the theory, from the foundation of the government. The usage in Mississippi, with a solitary exception in an extraordinary conjuncture of public affairs, gives it no support. That the government has lived from its birth to this hour with no valid fundamental law on which to rpst, except for a brief interval, cannot be true. There is as little ground for the second branch of the contention. The l’egulation of the right of. suffrage belongs to the state, and the only limitation thereon to be found in the [906] constitution of the United States, or the latest amendments thereto, will be found to be the prohibition of discrimination against persons on account of race or color. It is idle consumption of time to talk ©f this as at all doubtful. The supreme court of the United States has more than once affirmed it. Despite the act of congress referred to, when the state was re-admitted to her place in the federal union, she was restored to all her rights, dignities and powers. She was admitted as the equal of any other state, with the same power to regulate the right of suffrage within her borders enjoyed by the other states. But the contention is so manifestly untenable, and has been so effectually disposed of by the utterances of the supreme court of the United States, that we decline to say more. The error assigned to the action of the court in sustaining the demurrer of the appellee to the petition, and in excluding the evidence offered by the appellant of N. Loudon and others, in support of the charges of fraud made in the petition, is well taken. The petition charged that the appellant received a majority of the legal votes cast, and very much in addition, by which fraud in the conduct of the election at Brunswick box was detailed; and the evidence of Loudon and others, offered on trial and excluded, if true, stamps the returns from that box as false and fraudulent. Without interpreting the provisions of the constitutional election ordinance, and independently of the true meaning of the provisions of this ordinance, the petition and excluded evidence, under the general law — the common law — of elections, averred and would have shown, or tended to show, such fraudulent practices of the election officers as would require the revision, if not the rejection, of the returns by a court of competent jurisdiction. The petition, in effect, charged that by fraud forty-one votes were illegally cast at Brunswick, which, by collusion with the election officers, were received and counted for appellee, and the excluded evidence went directly and specifically to the support of this [907] charge. The demurrer should have been overruled, and the evidence of N. Loudon and others should have been received. See Word v. Sykes, 61 Miss.; McCrary on Elections, chapter 16; Paine on Elections, pp. 416 and 502. Whatever the true interpretation of §§ 241 and 242 of the new constitution and of the election ordinance of the convention may be, it is certain that neither was designed, in whole or in part, to make the electors the mere creatures for registering the will and choice of the officers of the election. It is clear that the conversion of these officers into partisan managers and political bosses was not the purpose of the constitution or ordinance. Reversed and remanded.