Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-04-15
atninu and Amrritan.
SUNDAY. April 10, 1866.
HAVE WE ANY CONSTITUTIONAL
JUDGES IN TENNESSEE.

For the Union and Americana
propose to submit TO the consideration
Of your readers, and especially those of
them, who belong TO the legal profession, a
few thoughts on the present condition Of the
judicial system of our State. i am induced
to do 50, because the question Is frequently
propounded Have we constitutional judges
now occupying the bench in Tennessee
The frequency of this question indicates,
that there are grave doubts in the public
mind, whether our courts are legally consti-
tuted and organized, and whether their
judgment and DEGREES are entitled TO full re-
spect and confidence.
Il is scarcely necessary TO premise, that
all of our judges and chancellors now hold
their positions under appointments, made by
either Gov. johnson or Gov. Brownlow. In
the remarks which am about to submit, /
waive the question as to the legal character
Of the executive and legislative officers now
in existence, but proceed upon the assump-
ton that we have constitutional Governor
and Legislature, not, however, intending TO
indicate any opinion on that subject.
Assuming that we have a legal Governor,
the question is presented: Has the Governor
a constitutional right TO appoint and COM
mission the judges and chancellors?
BY referring 10 art. 6, Sec 3, of the Con-
stitution, we find that "The Judges of the
Supreme Court shall be elected by the quail
flied voters of the State at large, and the
Judges of such inferior courts as the Legis-
lature may establish, shall be elected by the
qualified voters, residing within the bounds
of any district or circuit TO which such infe-
rior judge or judges, either of law or equi-
ty, may be assigned, by ballot, in the same
manner that members of the General As
sembly are elected.
For the purpose of carrying out this fun
damental provision the Legislature enacted,
that "the election for Judges and Chancel-
lors shall be held on the 4th Thursday Of
May every eight years, counting from the
4th Thursday If May, 1854, and when va
cancy occurs; and for the Attorney General
and Reporter, and the District Attorney,
every six years, counting from the same time,
and when vacancy occurs" Code, sec.
1913.
According TO this provision, the Judges
and Chancel0rs were to be elected, on the
4th Thursday Of May 1862, and to hold their
offices, until the 4th Thursday of May, 1870.
As no elections were held on the 4th Thurs
day of May, 1862, which are regarded as
valid, (the State then being in instruction
ard under Confederate rule, it follows, that
from that time, vacancies occurred in the
several judicial offices by the expiration OF
their constitutional terms. These vacancies
were filled by appointments made by Coy
ernor johnson whilst Military Governor, as
far a. they were filled at all
When the Convention assembled on the
9th of January, 1865, they adopted a sche-
dale TO the amendments Of the Constitution,
which declared that 'all civil and military
officers which have been or may hereafter
be appointed by the acting Governor of the
State, are hereby ratified and confirmed, and
they shall continue TO hold and exercise the
functions Of their respective officer until
their SUCCESSORS shall be elected or appoint
ed, and qualified as prescribed by the law.
and Constitution of the State and United
States"
Giving to this schedule the force of con.
stitutional provision, it follows, that all the
judicial appointments made by Gov. John
son were valid, and continue in force until
successors are appointed or elected, in pur-
snance Of the laws and Constitution of the
State.
The Legislature on the 10Th of May
1865, adopted a joint resolution by which
they ratified and confirmed all the civil
officers appointed by Gov. johnson after the
9TH day Of May, 1862, from which it is
clearly to be inferred, that the provision OF
the schedule, before recited, was intended to
apply only 10 the appointments made, or to
be made, by Gov johnson and that it has no
application whatever 10 the appointments
made by Gov Brownlow. The former have
the sanction Of the amended Constitution
the later must depend fortheir legality, upon
the Constitution and laws, as they existed
when the appointments were made.
Turning TO the Constitution, we find the
following provision for filling vacancies
Art. 7, section 4 "The election of all off.
GERS, and the filling Of all vacancies that
may happen by death, resignation or re.
moval, not otherwise directed or provided
for by the Constitution, shall be made IL
such manner as the Legislature shall direct
Ii is TO be specially observed that this pro
vision is confined TO vacancies occurring by
i'death, resignation or rcmOrdl, and that it hai
n O application TO vacancies occurring from
In expiration Of the terms Of Office. 1t is more
oy, n TO be observed, that this is the only
con stitutional provision in regard TO vacan
cies, and, therefore, that the only authority
confe. rred on the Legislature, to provide fol-
yacan, cies, has reference to vacancies &C
currin,y by death, resignation or removal. y
In CARRYING out this provision, the Legis
lature h as enacted as follows: Whenever
vacancy occurs in any of the offices herein
named, (:ncluding Judges and Chancellors,
the Governor shall order an election, by
issuing proper writs Of election TO fill the
vacancy, giving notice thereof" Code
chan. s, art l, soc. 3l2 After providing
for sixty DAYS notice in the election of Su
preme Judge, and thirty days in. all othel
judicial elections-the code proceeds: "lI
the mean time, the Governor shall appoin
\ suitable person 10 fill the office, until tn
election Of a successor" Code, sec. 3l5.
The law, therefore makes it the duty o
the Governor, Wheneue- he is informed of tn
death, resignation, or rc7nordl of Judge o
Chancellor, 20 issue writs of election, givint
sixty or thirty DAYS notice, as the case ma,
be; and. until the expiration Of this time
he is authorized 10 appoint a special Judg,
or Chancellor. The law is explicit and i'm
peratiye-wheacrer such vacancy occurs, tn
Governor shall issue writs Of election. III
has no discretion as 20 the time when h,
will issue writs Of election-he is bound {
do NO rhenerer he is informed Of the vacancy
lie has no authority 10 appoint suitahl
person 10 fill the vacancy, except during tn
time OF the notice Of the election
sixty DAYS in case Of Supreme Judge
and thirty DAYS in case of othe
Judges and Chancellors. A failure to issu
writs Of election, within REASONABLE
time would b.. a plain dereliction OF execu
tive duty--an appointment Of a Judge 0
Chancellor 20 hold the office indefinitely
and without issuing writs of election, woul,
be a palpable abuse of executive authority
and a plain infraction Of the rights of th
people to elect the judicial officers.
These remarks apply only to the filling {
vacancies occurring by dcdtA, resignation q
-euoral: but as regards vacancies occurrin
from the expiration Of judicial term, tn
Constitution and the law, are alike silen
Ii seems never 10 have been anticipates
that such n vacancy would occur. and henc
no provision has been made for it. Th
Convention which met at Nashville, 1
January, 1860, 10 amend the Constitution
overlooked this omission in the Constitu
ton, and therefore provided no remed.
They provided for the ratification of Oh
appointments made by Gov. johnson, an
there left the subject. The Legislature ha
not undertaken 20 remedy the defect, nc
indeed have they any constituted power I
DO so. Gov. Browniow has no such pow,
under the Constitution, and If he has aSsun
ed 10 make appointments to fill such vaoai
cies. he has simply assumed power that Is NJ
conferred on the Governor, and his appoin
ments are null and void On the 9th,
hand. the appointments made by Gov. Johl
son are valid. and viii continue in fore
until the Ath Thursday of May, 1870, the