The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1866-02-03

The c, urt will pie Sc bear with me while
! present the reasons why, in my opinion,
the pleas in this case should be sustained, ,
and the defendant not put upon his trial.
The Liberties Of free people can only be
maintained BY rig d scrutiny OF the OIL
ciai acts Of all public officers and when
occasion demands, their actions should re-
ceive careful judicial investigation, that the
rights Of The people may not be usurped upon
the one hand, nor the dignity Of ot1cs ia
vsded and made mere Insignificant upon
the other.
The rights of each should be scrupulouslv
adhered to, in order 10 make permanent the
great objects for which civil governments
have been instituted among men. aud,
may remark here, that no class of men hss
contributed more towards tSe permanent
establishment Of civil and political freedom,
than the Bsr-it has kept wateh over those
TO whom trust and power has been confded
through all the history of our immortal
Republic. The Legal Profession have stood
for centuries, as SO m my sentinels upon the
watch towers of Liberty. And, trust, they
may never abandon nor desert their posts,
especially should they be on guard, ready
to sound the alarm at the first approach Of
official encroachment upon the rights and
powers nf the people, in times like these
when ge are emerging from the grasp Of
usurpsd authority, and attempting to re
turn to the land marks Of our fathers, and
again follow the constitution and laws OF
our country. In the case at bar, the ques-
tiOn is raised as to the authority Of The Gov
ernor to appoint Judges and other officers
here .ofore elected By the people. Such is
our present inquiry.
1t is therefore proposed to examine into
the powers of this character conferred upon J,
and vested in the Governor of Tennessee, by
our State constitution, and the amendments
and schedules thereto attached. IL is not
intended TO discuss this subject in 8 spirit
Of elimination, nor in all its suggestive re-
lations, but TO make a brief survey Of the
assumed power Of tho Executive in making
judicial appointments. The Constitution Of
the State, adopted in 1884, which under
stand 70 be the organic law of the land, Ger
tsInly does not confer any such authority
upon him, but on the contrary, expressly
conhdes this prerogative 10 the qualified
voters Of the judicial districts and circuits
respectively. By reference to article 1, sec
tion 1s6 of that instrument, we find the ap-
pointing power Of the Governor definitely
limited to officers temporarily appointed
TO 81 vacancies in such Offices as are filed
by elections by the Legislature. The reason
is obvious. The Legislature is not in session
at all times, although the present body
seems 10 hold out quite long, and to prevent
the necessity Of calling the Legislature to-
gether 20 fill vacancies which may happen
IN such offices as are filed by them, the
Constitution has wisely provided that the
Governor shall make appointments which
are good until the Legislature assemblies and
eiects successors 10 fill such vacancies. But
the VI article, section 3 Of the Constitution
OF Tennessee says, The Judges of such
inferior courts as the Legislature may es-
tsblish shall be elected By the qualified
voters residing within the bounds Of any
district or circuit TO which such inferior
Judge or Judges, either Of law or equity,
may be assigned, by ballot in the same nan
ner that members 0. the General Assembly
are elected" Here, then, il is *
presaly provided that judges shsn be
elected "by the gu lifed vo.ers re i'd ng
within the bounds" of the Dis riet or Cir
cult in which they are 10 serve. l. the Ian
gusge OF th- Constitution, by the qualified
voters who nAy reside in the Dis,rict or
Circuit where the Leg sture may assign
such Judges. The 18th section of the same
article Of the Constilution uses similar Ian
guage in references TO the election Of "the
Attorney General for the State in any Cir
cniG OF District" No fact could by possi-
b,lity be more specifically stated than is
here expressed, giving the election OF these
judicial otheers-judges and attorneys gene
ral-to the "qualI6ed voters" the districts
and circuits to which they belong. The
Constitution does rot even authorize the
Governor 70 make teu porsry appointments
in the case Of Juoges. because he people.
having the sole zig ght TO make Judges throug b
tne medium Of the elective fra4chise, uu-
like the Legislature. which holds its sessions
b enal y, they are RiWays situated 90 they
can act and e ect Whenever q vacsncy oc-
ours. An amsndment % the Constitution
was adopted in 1883, providing: "rhe Le-
gisla;ure shall ap oint day for holding
the election Of Judges and Attorneys Gene
raj, Sc afate and apart from TIE da5 6 a.
resay prescribed or hereafter 70 be pre-
scribea By the Legisla uEe for holding cleo
iious for State and county oficers-' In
obedience 10, and conformity with, this con
stitu.ional provision, the Leg stature pro
ceeded to enact: {" The election for Judges
and Chsucellors shall be keld en- the fourth
Thursday Of May every eight years, count
ing from the fourth Thursday Of Nay, one
thousand eight hundred and fity -four %
See Code, section SIS. Il IS also provided
that an election shall 30 held for Judges
whenever q vacancy occurs." Now.
II is presumed none viii be 50 bold
as 70 seir- that any power exists
anywhere according 20 these constitutional
and ststutary provisions, except in the
qualified voters, 10 confer authcrity upon
any enc 20 exercise the functions Of Judge.
But it VIII be argued on the part Of the State
that the Governor derives authority for
making Judicial appointments, from section
SIS Of the Code, which vii be noticed ia q
minute. L is provided, section Il2 Of the
| Code; whenever vacancy occars in any
Of the ofhces" Of Judge, ffthe Governor shall
order an election, BY issring proper writs q
election, % I'll the vacancy, aiyiDg n1tioe
thereoi.' And then, section 15a says; ain
The mean time the Governor shsl. appoints
suitsole person 20 fll the vscancy. nntil the
election q q successor" This section u IL
tended 60 meet znv emergency that uaT
arise aaa prevent delay in litigation. -
intention IL lHudsble, but i is nevertheless
doubtful whether the Legislature did utt
/ leap tbe bounds Of their sntAority. and vie
late The Constitution By the adopiioa of u B
section. because We have sc6n thst tn
Governor according % the Consttufion. eaa
] only make temporary nppsiulments 70 6 I
yaeaucles IN such oifices = are elective b.
I thessLegislatare- Bat suppose this ssctia.
| is co1stilutionsi, what dpes q uleanf 81
course 4 requires an election IS soou g. tfe
proper notice can Be given, and % secun
The sdministrssion Of ths law Ia urefsirq
srasrTsncies, authorizes the Governor 4
LAKE teEporAry aEp9lEtueztz betuear IA