Opinions of the Supreme Court in the

Election Cases.

BY CHAS. S. VARIAN.

The opinions of the Supreme Court in the election. cases furnish us with another and apt illustration of the aphorism, "Law is not an exact science."

It is not the purpose, in this paper, to criticize the judgment of the Court in sustaining the legislative acts under consideration. With the result reached through the concurring, albeit diverging, views of the judges, the writer is in accord. It is with the apparent incongruities and non sequiturs of each opinion we are to deal. The petitioner, an appointee of the Governor to fill a vacany in the office of District Judge, asked for a writ of prohibition preventing the canvassing the returns of the election of his successor at the general election in November 1896.

The two acts of the legislature relative to elections mentioned in the opinions, were claimed to be in violation of the constitution for several reasons.

First; it was contended that neither act was passed in accordance with the requirements of the constitution, and in support thereof petitioner offered to prove the fact by the journals of the respective houses.

Second; it was claimed that one of the acts was in direct conflict with the express requirement of the consti

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tution that "All elections shall be by secret ballot” and therefore it with the election held under it were void.

Third; that the other alleged law did not conform to the constitution because the subject was not clearly expressed in the title and more than one subject was embraced in the body of the act,

Fourth; that the act of March 28th, which provides the general scheme of elections, operated unequally and ununiformily on the voters by not providing equal facilities

to all.

The third contention of the petitioner, above stated, if sound affected only his particular term of office. The others involved the validity of the general election throughout the State. The opinion of the Chief Justice was evidently intended when prepared to be the judgment of the Court, but the concurring opinion of the associate justices repudiates both reasoning and result of the first opinion upon the two propositions first stated, and consequently as to them stands as the decision of the Court, while as to the last two questions made, the concurrence of the associate justices with the views of the Chief Justice make his opinion as to them, the decision of the Court. Therefore both opinions must be read and interpreted together in order to reach an understanding of what the judgment really is.

The Chief Justice holds that the enrolled and authen. ticated bills, as deposited in the archives of the State, are conclusive, and that the evidence of the journals offered by petitioner to impeach their validity is imcompetent, and that the ballot provided for in the election scheme devised by the Legislature is a secret ballot, and upholds both acts upon these grounds. The majority of the Court overrule him on both grounds,

After a learned and laborious examination of the authorities, Mr. Justice Bartch, with whom Justice Miner con

curs, reaches the conclusion that the so called "American rule" is the better one, and therefore holds that the proffered evidence of the journals was competent to impeach the enrolled bills, but proceeds to say;

"In this case looking to the journals there appear to be "no affimative statements recorded which conflict with the "validity of the enrolled act, and the mere silence of the "journals, as to the mandatory provision of the constitution "here in question, will not justify the holding of the act "void, because the presumption in such case that the legis"lature proceeded properly, is conclusive." In other words the Court rules the evidence offered to be irrelevant and immaterial as not tending to prove the issue. Why, then, we may ask, decide the grave question of constitutional law presented but not necessarily involved? It is enough to defeat the petitioner upon this branch of his contention by excluding his evidence as irrelevant. To this it may, perhaps, be fairly replied, that the opinion of the Chief Justice discusses and decides the question, and therefore the majority opinion may be expected to also consider and determine it. But the concurring opinion, on this question, is the opinion of the Court, which, finding the evidence to be irrelevant had no occasion to pass upon the constitutional question. The majority decision in this particular may be justly criticized as being of no judicial value save as an indication of what the decision of the two justices upon the question will be, when, if ever, it shall be properly and necessarily before the Court for decision. The only clear light shining through the judicial mist is that of the unanimous judgment that these particular laws were constitutionally enacted. The Chief Justice proves it by the enrolled bills which he holds are conclusive evidence; the Associate Justices sustain their conclusion by the presumption of regularity attaching and to be made in the absence of affirma