Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-12-31
ANOTHER CARD FROM JUDGE
BRIEN.
Mr.. Carey Pronounced IneiisibIe

To the Editors Of the Union and Dispatch:
Hold on, Mr.. Eugene Cary, you are a
little too fast. | repeat what have here
tofofe shown, that Eugene Cary is totally
incomp etent for the Office of Circuit Court
Judge, for the want of legal ability. He
was never admitted to the bar of the Cir
cult Court, as the record shows; in other
words they do not show that he ever pro-
cured a license and qualified himself as
contemplated by section 1868 and 1868 of
the Code If this latter section was ever
complied with, the record failed to show
it. But if qualified, he is not eligible,
which | will now show consequently he
will not be appointed and commissioned,
even though the people may elect him next
Saturday.
First. By article second, section one,
Of the constitution ofTennessee, page thir-
ty-six Of the Code: "The powers of the
government shall be divided into three
distinct departments, the legislative, ex
ecutive and judicial"
Section two. "No person or persons be-
longing TO one of these departments shall
exercise any of the powers properly belong
ing to either Of the others, except in cases
utIeiu ulItCleu Vi pcIulttcu.
By section ten mo Senator or Repre-
sentative shall, during the time for wlich he
s0as elected, be eligible to any Office or place
of trust, the appointment of which is vested
in the Executive (the Governor) or the
General Assembly, except to the Office of
trustee of literary institution"
By article 7, section 4, page 45 of the
Code, "the election Of all officers and
the filling of all vacancies that may hap
pen by death, resignation or removal, not
otherwise directed or provided for by the
constitution, shall be made in such manner
as the Legislature may direct"
This does moi in the slightest degree eff
feet the appointing power of the Governor,
and that he might not be embarrassed, the
Legislature of 1865 expressly directs him
to make appointments of judges. The
Governor so understood il, and 80 acts.
That he has the power TO appoint, etc.--his
proclamation directing elections, etc, in
some instances does not change his APP
pointing power-still, although an election
is held without his appointment and COM
mission, the Office is still vacant, and so the
Governor understood it, hence the appoint
ment and commission of the Supreme
Court and allother judges. The Governor
has so construed this appointing power as
contemplated by said section 10 add APP
pointed all Judicial offices.
The Legislature so understood it in j.
r. Dillen's case. See acts of 1865, page
l40, when he was elected by the Legisla-
ture Comptroller of the Treasury of the
State of Tennessee, during the time for
which he was elected The same Legis-
lature declared his election void, and pro-
ceeded to elect an other man. His resig~
nation az a member of the Legislature did
not save him as he was elected for three
years. See this case, page AS of the acts
1865.
Then Mr.. Cary was duly elected as a
Senator TO represent Davidson county in
the Legislature, on the first Thursday in
August 1867. Appeard the first Monday
in October, was qualified and took hi. seat
Then, as such, he is clearly ineligible to
the Office of Judge for two years, as the
power of the appointment, as before shown,
is clearly vested in the Governor. His
resignation does not relieve him or render
him eligible for three years.
The trainers of the constitution of the
United States had in their mind Just such
a man as Eugene Cary when they provided
in article /, section 6, "That no Senator or
Representative shall, during the time for
which he was elected, be appointed to any
civil Office, under the authority of the
United States, which shall have been Gre
'ated during the time he was a member"
So Mr.. Cary, while a member of the
Senate as before shown, created this little
one county circuit, declaring himself can
didate for Judge of it, and then resigns his
seat as Senator. Creates the Office express
ly for himself, then has the effrontery to
resign and run for it before his two years
had expired. A little toe fast, Mr.. Cary,
You had better tarry awhile and read lur
BY article g. section 10, page 40, the con-
stitution provides THAT the Governor
shall see that the laws are faithfully exc
cuted." Then you, Mr.. Cary, although
you may be elected, rest assured Governor
Brownlow, who shuns no responsibility,
will not commission you for two years.
M. NJ. ERIEN, JB.
December S0th, 1867.