Nashville patriot. [volume] (Nashville, Tenn.) 1858-1860, 1859-10-24
Election - Report of the
IGalieluded.l

this report. the undersigned might here dis
miss the subject; but they think it due alike
to the general Importance of the subject and
the rights of the contestants and their con-
stituents, to attack the views of the majority
on their own ground of fact and Constitu-
tional law. Does the fifth section Of the
tenth article of the Constitution apply to and
embrace the Grundy fraction, although il
may have been attached to the new county
by legislative change OF county lines, and
after the new county had been fully organ
lied 1t will reflect much light upon the
proper construction of this section of the
Constitution to ascertain its relation to and
Influence upon several other provisions in
that instrument.
of the Constitution. the General Assembly
is clothed with the power of making an
enumeration OF the qualified voters and an ap-
portionment of representation in the legisla-
ture. to be exercised the first time in tia year
1871, and within every subsequent term OF
ten years and it is manifest from the pro-
visions of the fifth and sixth sections of the
same article that equality of representation
was a primary and chief object OF interest
with the members of the Convention. 1t is
no matter Of surprise that the members oil
the Convention were tenacious of this great
est blessing in a republican government
an element of patriotic devotion in our ma
tional struggle for an independent existence;
it had been transferred from our battle fields
to an abiding place in our Federal Constitu-
ton. II had made us the most happy and Tree
people on the face of the earth. and il 1t bad
been left out OF our State Constitution, would
not have been a reflex of the popular senti-
ment. When the Legislature passes an ap-
portionment act according to the provisions
OF the Constitution, ii may be truly said the
legislative power on the subject is exhausted
for the period of ten years. Why the decen-
NAL enumeration and superintendent was
adopted, 1t is not important to enquire par
ticnlarly in this connection. 1t had been in
troduced into the Constitution of the Unlted
States. after mature deliheration of the Con-
vcntion, rs the most effective means to secure
equality Of representation among the several
States in Congress; and it was doubtless TO
secure equality of representation in The
Legislature that il was incorporated in our
Constitution. As consequence incident to
the exercise of this power, the qualified voters
have secured to them for the same period of
ten years a Constitutional right to vote In
the representative districts to which they may
be assigned, and it would DE very difficult to
maintain that the legislature could deprive
the voter of this right Ivy transferring him
against his will ia different district after
the right has attached. Had the trainers of
the Constitution left equality Of representa-
zion as 1t was secured and guarded by the
above mentioned sections # the second ar
ticle, there would. in all probability, have been
no necessity for the fifth section of the tenth
article. 1t was known to them, however,
that as the forest was removed and the popu
lation Increased. it would become proper and
necessary to divide the large counties and
make new ones, and by the exercise of such
power. the Legislature might every two years
seriously disturb equality of representation,
and greatly deTange the decennial appOrtiOn-
ment. 1t was to guard This power against
producing directly or indirectly such results,
that the provisions of the fifth section were
adopted and placed in such close connection
with the power it was intended to limit This
section is then an important restriction on
the power to create new counties : ii is also
one of the strongest guarantees in the Consti-
tuition that equality of representation shall
not be disturbed between periods of cnumer~
alton and appointment. 1t is difficult to see
how any serious controversy could arise as to
its true construction. The purpose of the
section being one of great Importance to the
ri ghls and interests of IA free people, it would
be expected that il would be broad
and comprehensive in letter and spirit, and
that such Interpretation would be given 10 ii
as would he surest to accomplish its purpose.
1t is said in the report of the majority that
it does not apply in this case to the Grundy
fraction, because no part of Grundy county
was taken in the original formation of Sc
quatchie county. 1t would seem that the
literal words OF the section would refute this
narrow construction. The expression cit
liens included in any new county" is GER
taiGly broad enough to include the citizens
of territory attached at any time to a new
county. There cannot be found q single
word, or combination of words, that point
to the original formation of the new county
as the time when the ''cItiZens included" are
to be ascertained. When a voter living in
new county presents himself to vote, he may
be asked two quesiions-Are you a citizen of
a county created since the last apportiOn-
ment act and from what county were you
stricken off? What authority have you for
asking him if he were included in the new
county at the time Of its formation. or added
since by change OF county lines? Suppose
he were to answer, that he was added alter
the new county was created, would he not
he a 'citiZen included in new county,"
and be embraced in the very letter of the
section? There is not room for a dignifiCd
play upon words in defence of the mar
row construction: indeed, there is not fOun-
datiOn enough in the language Of the section
To support even the shadow of legal quib-
BILE
1t is well settled rule of law, particular
ly applicable to this case. that the Legisla-
ture cannot. in the exercise of its constiIu-
tional powers, do Indirectly that which it
cannot do directly. This rule has been APP
piled 10 two of the restrictions and limita-
tions on the power to create new counties.
By cluase in the fourth section OF the tenth
article il is provided that mo line of such
(new) county shall APPROACH the court house
of any old county from which it may be Ia
ken nearer than twelve lies" This cluasc
was construed in Gotcher US. Burrows. 8.
Hump. Rep. 5S8. The Supreme Conrt held
that the court house of an old county could
not be approached nearer than twelve miles
by the lines Of "a new county by a change of
county lines, although the letter of the
clause was confined To the lines of the new
county made when il was first established.
The opinion of Judge Mckinney in the above
case is n conclusive argument in favor Of our
construction of the fifth section. By the last
clause II the fourth section. above referred
to, il is declared that 1.-The counties of Marion
and Blcdsoe shall not be reduced below one
thousand qualified voters each. in forming
new comfy or counties" The limitation
here is in the terms Of the clause, confined
TO reduction of the qualified voters below
one thousand by the formation of a new
y
~ u.s. Grundy county, 5. Sneed's Rep. 400, il
is expressly held that Marion county could
not be reduced below one thousand qualified
voters by change of county lines. 1t was
argued in these cases, as it has been in the
one now on hand, that the constitutional re-
strictions did not apply TO a change of coun-
ty lines. and that they ceased TO be operative
on the Legislature after new county had
been established; but the Supreme Court re-
pudiaied the marrow construction insisted
upon. as this body should do in the case
now before it. All admit that the voters
of the Grundy fraction would not have been
transferred from the fourteenth In the eighth
Senatorial district If the fraction had been
included in the new county at its
yet ii is argued >gravely that the
transfer could be aud was made indirectly
by attaching the fraction to the new county
after il was established and organized. Did
the constitutional restriction-"the citizens