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pleasure of the people, acting in their sovereign capacity. Ibid. And this power of disfranchisement may be exercised by the imposition of a test-oath, to be taken by each voter at the polls. Blair v. Ridgely, 41 Mo. 63. If a party be disfranchised under the state law, for rebellion against the United States, a pardon by the president, though it restores him to the rights of citizenship, does not re-confer upon him the elective franchise. Ridley v. Sherbrook, 3 Cold. 569.


In the Supreme Court of Missouri.




A state, having the sovereign power to prescribe the qualifications of its electors, may impose a test-oath to be taken by every voter at the poll: this, in no way, violates the constitution of the United States.

Error to St. Louis Circuit Court. The plaintiff brought his action against the defendants in the court below, who were the judges of an election held in the city of St. Louis, on the 7th day of November 1865, for rejecting his vote, and claimed damages in the sum of $10,000. In his petition he averred his qualifications as a voter, and stated that he offered to take a certain oath, therein set out, but which was not the oath required to be taken by voters by the second article of the amended constitution of Missouri. The defendants demurred to the petition, on the ground that it did not state facts sufficient to constitute a sufficient cause of action, in this, that it did not state that the plaintiff, when he offered to vote, took or offered to take the oath of loyalty required by the constitution to be taken by all voters, as a condition precedent


to their exercise of the right of suffrage, at any election held in this state. This demurrer was sustained by the court below.

Glover and Gantt, for the plaintiff in error.

Drake, for defendants in error.

WAGNER, J., delivered the opinion of the court. The question raised for consideration is of the gravest importance, and involves a consideration of the constitutionality of the oath of loyalty, so far as the same is applicable to voters. It is contended, that the third section of the second article of the constitution of this state, which prescribes the oath, is a nullity, because it is a bill of attainder in the meaning of the constitution of the United States, and because it is an ex post facto law in the meaning of the constitution of the United States. Ex post facto laws and bills of attainder have been so much discussed of late, in connection with acts springing out of the troubles through which the country has just passed, that it is unnecessary to enter upon an argument concerning their nature and character. The real point to be determined is, whether the constitutional oath which is prescribed as a condition precedent to every man's right to vote, falls within the inhibitions of the constitution of the United States forbidding the states to pass such laws.

The tenth section of the first article of the constitution of the United States declares, that no state shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of a contract;" the tenth amendment to the constitution of the United States provides, that "the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The states, when they entered the union, retained all their original power and sovereignty, except such as were expressly


surrendered to the general government, or they were expressly prohibited from exercising; subject to these exceptions, they are independent commonwealths, and the exclusive judges of what is just and proper for their safety, welfare and happiness. From the foundation of the government, the supreme court of the United States, as well as the courts of the respective states, have abstained from declaring a law unconstitutional, unless it was a case free from all doubt; the co-ordinate departments are all equal, each acts under the same solemn sanctions, and one will not assume the responsibility of annulling the work of the other, except upon the clearest evidence that it has transcended its powers, or violated the organic law of the land. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the constitution of the United States, "the case must be so clear," to use the language of a learned author, "that no reasonable doubt can be said to exist." Sedgwick on Stat. & Const. Law 592.

The judiciary will not be justified, nor, indeed, will it be authorized, to nullify and abrogate a law, merely because it deems the law unwise, unjust or impolitic; these being questions purely within the cognisance of the law-maker, the remedy not being through the agency of the courts, but in the hands of the people by the exercise of their political power. Any other practice would tend to produce continual conflict and dissension between the different branches, where mutual respect and harmony should prevail, and ultimately paralyze the functions of government. But, notwithstanding these considerations, where any law, or any provision or clause of a state constitution, clearly and unquestionably violates the constitution of the United States, the courts can no more shrink from declaring it void and of no effect, than they can refuse to pass upon and determine any ordinary matter which comes within the admitted circle of their jurisdiction.

When the federal constitution was adopted, we derived


our whole system of common law from the parent country, and the prohibition against ex post facto laws and bills of attainder, was levelled against such laws as known and practised in England. In those cases in English history, where bills of attainder have been passed, they have generally referred to the parties by name; for they are in the nature of judicial sentences, and directly affect those against whom they are aimed, without the formality of a trial; we have seen no case (and it would seem to be an impossibility) where such laws have been passed, having universal application, and were laid down as rules comprehending the whole people of a state. In the act for banishing and disennobling the Earl of Clarendon, the law designated him by name, and proceeded to inflict upon him certain penalties, without trial; so, too, in the cases of the Bishop of Rochester and John Plunket, and in the act disfranchising John Burnett and his associates from voting at election of members to serve in parliament, and for the preventing bribery and corruption in the election of members to serve for the borough of New Shoreham. The Earl of Kildare and his adherents were attainted without specifying their names, but sentence was absolutely passed upon them and execution followed, whenever they were identified, without reference to any act on their part.

But the section of the constitution we are now considering has been before the supreme court of the United States, in Cummings v. Missouri (4 Wall. 277), and it was there held by a majority of the judges, reversing the decision of this court, that the provision was in the nature of pains and penalties, so far as it related to the oath required to be taken by preachers, and was, as to them, consequently, void; five of the judges concurred in this opinion, and four dissented; and Mr. Justice Miller, on behalf of the minority of the court, delivered an opinion, which, for ability, logic and admirable judicial criticism, has rarely been excelled even in that august tribunal. It is now claimed that that decision is decisive, and also concludes


this case. Did we think so, we should unhesitatingly follow it, although our opinions and convictions remain unchanged; for it is to the interest of the country, that an end should be put to litigation, and principles of law settled; and whenever the courts of last resort fairly decide a question coming within their jurisdiction, it is the duty of inferior courts to submit, and to obey the paramount authority, although they may not be satisfied with the result. There was but one question presented to the court for adjudication in the Cummings case, and that was, the constitutionality of the oath of loyalty, so far as the same applied to preachers and ministers of the gospel. It is true, Judge Field, who delivered the opinion of the majority of the court, arguendo, speaks of other pursuits, professions and trusts, for the following or holding of which the oath is enacted as a condition precedent, and condemns them all as liable to the same objection. Now, in a case where the principle is identical with the decision, we feel bound to follow it;* but arguments or illustrations on different points, not necessary to the decision of the case, constitute no part of the judgment of the court, and can no more be deemed binding authority than the animadversion which the learned judge sees fit to pass upon the whole constitutional provision.

It is not for us to determine whether the law is just or unjust, politic or impolitic; that is the appropriate function of another body; nor is it within the sphere of our duties to go into an inquiry, or speculate as to the effect it may have on future political parties. Mr. Justice Iredell, who possessed an unclouded intellect and unbiassed judgment, after stating, in Calder v. Bull (3 Dall. 399), that a statute in violation of the constitution is void, continues, "if, on the other hand, the legislature of the union, or the legislature of any member of the union, shall pass a law,

* To the honor of the court, be it said, they did follow it, in the case of attorneys at law, in State v. Glover, 41 Mo. 339; and of school-teachers, in State v. Heighland, Ibid. 388.

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