Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-20

his posion Is much strengthened if not distinctly
established by the provision Of the Private ACT. Of
857-5 chap. s. referred TO in former part Of this
.eoort Tae new county Of Sequatchis did not pass
,ut from underneath the jurisdiction and authority
IF Hamilion county until it was presided with the
Courts and officers necessary "for the enforcement
81 law and the attainment Of justice" Did Sc
uuatchie have any suoh organization when the /
Graady fraction vas adieds The act creating the |
new county, did not and could not havs effected |
such an ORGANIZATION. Tbs majority do not attrib- |
ute any such energy 90 that act but it is insisted
that the justices Of the reace on the first Monday IN
J.nuarv 1858 completed the organization so that |
the nav County vas as thoroughly an organiIsd !
comfy as The counties OF Davidson and Rutherford
Ii does not clearly appear in proof what was done
by the justices Al the time referred 70, or on any
oIhsr County Court day Afterwards; but suppose 1t
is trne as stated in the report OF the majority
that ,hey elected or appointed persons to Gil the
a,uutv off ,es the exercise of such q power is
nslnshle violation of the Consultation, aad could
nat therefore, aid the position Of the majority.
The Constitution provides thst the Sheriff, County
Court clark Trustee, and Register shall be elected
by the people, and by the second section Of the
seyenth article il Is declared that, should ga
ranr ocenr SUBSEQUENT 10 ecrio4 ia the Offices Of
sheriff, Clerk Trustee, Register, it snail be flied
nv The Justices" No such Contingency as q
'i.yacancy subsequent 10 an elesfioH," 90.
Cured in this case, and it is only upon
onatitalionsl plwer 10 Gil these Offices. TAis view
apolies with equal fOrcs t. the appointment of
Circuit Court Clerk by the Judge assigned 10 hold
the Circuit Court in SsqaNcaie county. Chief
Justice Catron III Smith vs. Normant, 5 Y,Fger's
Reps. 2T2, says: "Wneneser ate Constitution
,rsscribes q part'ea manner ia which power
shalt be executed, II prohibits every other mode Of
executing such power. Oa that particular subject,
the authority is exhausted by the constitutional
provision aadI Jan attempt to render il gatory by
law would be attempt at repeal" IL may be
said that the persons elected or appointed By the
justices were officers de aeto if de ss, but the
question of this constitutional right 10 hold the
oi,es does not arise Incidentally in This case
Chef Justice Cairon answers this position when he
says ia the above IL is axiom in govern
meDt, that what The Legislature has not power itself
to do, cannot be conferred on agent the priDci
pal having authority, The deputy can have none"
1t is proven Automatically, that there election
of eoun officers by the people before ihs Grundy
fraction was added 10 the new county II does not
appear in proof that there has ever bssh election
| of county cthcers by the people, But the under
signed have in support of tn ir position on The
question Of fact. Legislative assertion late
the l7th day of Msrch. 1853 that the nea county
WAS not orgaDized See Private Acts OF 1878,
chap. l42 sec 3, page S49,
AS to the other questions of fast the undersigned
have but title TO add to what they have already
said in previous parts Of this report. IL is unde
nably established by the proof that tne Grundy
fraction was to be embraced in The new county
when application was first made to the last GeDsia al
Assembly for the creation OF the new county that
vas included in the original draft of the irSt Ast
and stricken out to abide an interview between the
citizens of the fraction and their Representa- in
the other House; that bill Of mi melton issued
in the month Of February, 1858, to prevent the
| tsblishment OF TIE new county; that the Hamilton
fraction did not have the territory popn alton
a.,
llOn and that was a1ded to Obviate Constitutional
objections and to all just Of litigation
against the establishment aud organization Of the
ne county. That the Grundy fraction added in
order to form az integral psFt Of new county, and
to give Constitutional breath uni lite to what had
been done, cannot be, in the opinion Of the uad,r-
sigued, Ihesuhject Of successful controversy.
Having thus refuted the assumptions Of fact so
much relied uron by the majority IN this report,
the undersigned might here dismiss the subj eci;
but they think il dus alike TO the genuine import
Of the sum ADD the rights of the contest
ants and their constituents, 10 attack the views
of the majority their own ground of fact and
Con tltuuoual Law. Does the IF section of the
tenth article Of the Constitution sPply to and en-
brace the Grundy fraction, although it may have
been attached 10 the new county by legislative
change of county lines, and after the new county
had been fully organ zed? II will reflect mucl
light upon the proper construction Of this section
influence upon several other provisions in that in
strumenI
BY the fourth section Of the second article Of the
Constitution, the General Assembly is clothed with
the power Of making an enumeration of the quail
fed voters and an apportlonment Of representation
IN the legislature, to De exsrc Ell the first time in
the year 1S47, and Within every subsequent term
Of ten years; AMI it is manifest from the provisions
of the fifth aud sixth sections Of the same article
that equality of representation was primary and
chief obieoE of interest with the members OF
tue Convention. It is no matter Of surprise that
the members of the ConeentiOn were tenacious OF
this greatest blessing republican government,
equaIity of representation. Il had formed an ele-
-nt of patriotic devotion in national struggle
for an independent existence; it h4i been trans
ferred from Ouv battle fields 10 "a abiding place in
our Federal Constitution, 1t had made Us the most
happy Of any people on the face Of the earth, and
if 1t I'd been left out OF State Constitution,
that Constitution would not have been reflex of
the popular sentiment, Whea the Legislature pass
es an apportonment act according to the provisions
of the Constitution, it may be truly said the lsgis
laiVe power tae sub cot Is exhausted for the Pc
riod of ten years. Why the deeennial enumeration
and superintendent was adopted 1t is net import
to inquire particularly in this connection. Il had
been introduced into The Constitution Of the United
Ststes after mature deberatiOn IF tie Convention
rs the most effective means TO secure equality of
EeEresen 4tlOn among the several States in Congress-
sthtstiau 10 the Legls Q that il was neorpOra-
ted Ia our Constitut ca. As consequences Incl
deaf TO the exercise OF this power, the qualified
voters have secured to them for the period OF
tea years Constitutional right TO vote in the repre-
sentative districts to which taey may be assigned,
and il would be very d.lsuls 70 maintain tina. the
legislature could deprive the voter Of this right by
transferring him against his viii 10 different dis
tFlet AFTER toe right has attached Had tina ifamers
of the Constitution left equality OF represen. atioa As
il was secured and GU Irded By the above mentioned
sections Of the sseoal article Their, Woull, in ali
probability, have been no necessity for the hyh
section of the tenth article, i Was kueWA to them
however, that ss ths grsI was removed aud the
reputation increased, it would become proper aud
necessary TO divide the large counties and make
ones, and by the exercise of such power, the le
gislature might every two years seriously disturb
equality Of representation, aud greatly derarge the
deonnisl superintendent. It was to guard this
power against predicting directly or Indirectly such
results that the provisions of tie fifth section
adopted and placed in such close connection with |
the power it was Intended 10 limit This section is |
then an important restriction the power to create
new countess it is also one Of the strongest guar
antics in the Constitution that equality of rep-e-
senIatiOn shall not be disturbed between perionds |
of enumeration and appol tionment It is difficult
to how any serious controversy could arIss as
to its true construction. The purpose Of the
tion being one Of great importance to the rights and
interest OF free people, it would naturally be- ex
pected that it would be broad aud comprehensive |
in letter and spirit, and that such Interpretation
would be given TO it as would be surest to accom-
plish its purpose.
II is said in the report Of the majority that it does
not apply in this TO the Grundy fraction, be-
cause no part Of GrHndy county was taken in the
original formation of Sequatehie county 1t would
thst the literal words of the SECTION you'd re-
fute this narrow construction. The expression, |
"citizens included in eny neS county" is certainly
broad enough to include the citizens Of territory at
tached at any time to a new county. There cannot |
be found a single word or combination of words, |
that point to tae original formation OF the new county
as the time when the ''cigens iGsluded" to be |
asoePtainsd. When q voter living in new county |
presents himself vote, he may be asked two CUES
tions-Ars you citizen Of county created since |
TIE last spportionm mt act? ard from what ctunty !
we're you stricken OFF? What authority have you /
for asking him il he we're included ia the eouu-
~ ct the lime Of its formation, added since
by q change of county lines? Suppose he were to
answer, that he was added after the new county /
was created, would he not be "eit;zsa nclud d IN
a neg couGfy." and be embraced in the very letter
of the sectienf There is not room for dignifed |
n az upon words 10 defense Of the narrow
ton; indeed, there is not foundation enough in the
language of the section to support even the shadow
Of legal Cuibble
1t is . veil settled rule of Law, particularly ap-
pieable this case, that the Legislature cannot in