Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-26
TENNESSEE LEGISLATURE.


met pursuant to adjournment, Mr. Speaker
Frierson in the chair.
0na call Of the roll, hineteen members
answered to their names.
The Journal Of yesterday was read and
approved.
PETITIONS AND MEMORIALS.
Mr.. Spence presented a petition from
Mr.. BurtWell, asking for the admission of
Miss Burtwell in the Lunatic Asylum as
State patient, which has been refused on
the ground of her not being a citizen OF
Tennessee. Referred to the Judiciary Com
mittee.
SENATE BILLS on FIRST READING.
Mr.. Nelson introduced bill No. AIS, to
compensate laborers on the public roads.
Passed and referred TO the Judiciary Com
uittee.
Mr. Mcfarland presented bill No. 479,
10 incorporate the American immigration
Company. Passed and referred 10 the
Committee on Immigration.
Mr.. Senter presented bill No. $50, to reg
ulate the removal and appointment of the
officers Of the penitentiary. Passed, and
referred to the Committee on the Peniten'
tiary.
Mr.. Mcfarland presented bill No. 48l,
for the relief of Henry Blurdon. Passed,
and referred to the Committee en- Claims.
Mr.. Cate presented bill No. 482, to in
corporate the Chattanooga Water Company.
Passed, and referred to the Committe on
Corporations.
CONTESTED ELECTION CASE.
The contest between Messrs. Robinson
and Clark, for the seat in the Senate from
the llth district being a special order for
II o'clock, was taken up.
Mr.. johnson presented a minority re-
port from the Committee on Elections, in
the case, which was read.
Mr.. Mcfarland moved TO concur in the
minority report.
Mr.. Trimble moved TO lay the motion on
the table. Carried
Mr.. Spence moved to concur in the ma
iority report
Mr.. Mcfarland offered a resolution in
lien Of the majority report, declaring that,
by reason of illegally the election for
Senator in the llth Senatorial district is
void, and that the Governor he notified
that there is a vacancy existing in said
district
Mr.. Cate moved to lay the resolution on
the table, which motion was adopted, by
ayes, II noes, Z.
Mr.. Thompson wished division OF the
questions involved. There were objections
raised to the legality of the election in two
precincts and upon the decision as to these
respectively, rested the right of the one or
the other of the contestants. The judges
of elections were judicial officers, de tacto
and the presumption was in favor Of the
legality OF their acts. If the vote in one
precinct was to be thrown out, the other
should be.
Mr.. Trimble said that he had endeayored
to diyest himself of all prejudice in this
matter, and to look upon it simply as a
legal proposition He desired to hear
from members who attacked the majority
report.
Mr. Mcfarland spoke at considerable
length, contending that the election showed
the will of a majority of the voters in the
district, and that it should be so regarded.
He admitted that the judges of election of
the Lebanon precinct had not been sworn
until the voting had gone on for some
time, but claimed that they were Judicial
officers, and their acts would not be invalid
if they did not take the oath.
He cited two decisions of our Supreme
Court, in one of which the court says that
judges Of elections are judicial officers, and
could not be held liable for a simple mis-
taken neglect of duty; and in the other
case the court held that the oath of deputy
clerk, who had never taken the official
oath, would not for that reason be held
invalid.
He contended that this was a parallel
case to the one of the clerk, and that if il
were shown that the Judges of elections
acted cOrruptly in rot taking the oath, the
election over which they presided would
not be void
Mr.. Trimble replied to Mr. Mcfarland
He stated that the cases cited by the former
did not touch the principles of this case,
but only referred 10 the questions raised in
the cases themselves. One was to the Ell
feet that judges Of elections was judicial
officers so far as the determination under
the law, whether man who presents his
vote was legal voter, and they could say
whether they would receive his vote or not,
if they decided wrongly; they could not be
held liable in an action for damages for re-
fusing the vote, unless it appeared that they
acted corruptly and knowingly in opposi-
ton 10 the provisions of the law.
The other case was that Of a ministerial
officer, whose official acts were all pointed
ont by the statute, and if be followed the
law in good faith, the acts done by him
would not be void, because he had not been
properly qualified Both ofthese decisions
were correct, and in accordance with the
common law, but the court did not, and
could never decide that all officers could
dispense with taking official oaths
This was the only security We have for
the purity Of elections, and the oath was
prescribed 80 that no one could act corrupt
" in such cases without laying himself
liable to prosecution for perjury. The law
is to be found in the Code; it was made for
the benefit Of the people, and il must be
carried out
The judges Of elections have no discre-
ton, and cannot decide against the law, but
they must follow it, If they could do So
and neglect their duties with impunity, we
would fall into anarchy. We can only
know that an election is legal from the fact
that the officers holding it have done their
daty. The talk about the will of the peo-
pie being followed in all cases did not APP
ply, for that will must be legally expressed
70 become binding. If a man were TO re-
ceive all the votes in his district at an cleo
ton held without being authorized by law,
he could not take his seat as member of
this body.
He deprecated the spirit of disintegration
that seemed abroad in the land, leading to
this disposition to disregard the most solemn
obligations. Men did not Ike the restric-
tons of particular oaths, and sought to
have them set aside.
He was 4 universal suffrage man, upon
principle and not by amnesty but we must
follow the law, or we will fall into chaos,
where no mans rights would be safe. These
laws for the government of elections were
our only safeguards, for without them hon
eat men might hold elections honestly, but
others would not, so that the will Of the
people, which gentlemen talk about, would
be defeated
The testimony in this case is that 4 por-
ton of the votes at the LebanOA precinct
we're put in the box before the iudges were
swOrn. Some said there were about twenty,
and others that there were a great many
votes thus taken Now who can say whether
these votes decided the election or not ?
The effect of the position taken by Mr. Nc
Farland would be, that all judges of cleo
tons might act without being legally quail
fled. Would the gentleman himself wish
to see such q state Of things existing as this
would bring about?
Mr. Thompson made a few remarks in
support Of the views taken by Mr. McFar- |
land, when the vote was taken on concur
ling with the maiority report declaring Mr.. !
Robinson entitled to the seat, with the sol !
lowing result ayes IL, noes 5.
Those who voted in the affirmative were
Messrs. Bosom, Cate, Cypert, Hall, Keith,