Clarksville chronicle. (Clarksville, Tenn.) 186?-1872, 1868-09-18
DECISION OF JUDGE JOHN ALEX
CAMPBELL IN THE HARRY.
- LAUCK CASE. ~
AZ cffAMBEBs-PRAyER FOB rrJuo.

y n tom e 81
Thomas Barry, Rslator, VS.. J. F. Luack.-
This proceeding is by bill to be filed
in the Circuit Court at Springfield, UNI
der chapter s, page 500 of the Code,
which gives a REMEDY in case of usnr,
patton of Office. 1t is not proceed
ing under chapter 8, article 3, page
23e; to contest an election. 1t follows
therefore, that / cannot inquire into
the frauds of the election complained
of in the bill, or pass upon its validi-
ty. -irfRv y.tT frF
1t appears that the relator was APP
pointed Chancellor, by commission Of
Gov. Brownlow, on the Gath day Of
August, 1906, to fill a vacancy occas-
toned by the resignation OF Judge
Shackelford. On the 18th day of
March election for the Office was
held. The relator and the respondent
were opposing candidates. The rela-
tor contested the election, and Chan
cellor Steele held ii to void. This be-
ing the holding of the chacellor, he
could not certify to the Governor In
behalf of either of the parties under
section 903 of the Code, for IL the hold
ing was correct, neither party was
elected, ASA legal vote cast at void
election cannot be counted. The
votes Of void election are not coun-
ted at all. From the decision of the
Chancellor the respondent appeal
led, and claims to be Chancel-
lor under an election, the contest
of which he has continued to the Su-
preme Court. So the respondent, the
Governor nor any other person off,
cially knows whether he was
elected or not. This presents novel
and disgusting affair; and since the
respondent has procured, prematurely,
his commission based upon the cleo
ton, and presumed to enter upon the
duties of the office, a question arises
as to the powers of the Judiciary to
correct an error and irregularity of
the Executive. Moreover, the case
presents question as to who is the
Chancellor, pending the contest, or is
either of the parties Chancellor, is an
otherquestion. Suppose the Supreme
Court aflirms the decision of Chan
cellor Steele, the respondent will not
| have possibly been more than Chan
cellor de facto, and to be less, would
be no Chancellor at all. Then sup
:
and in the meantime, the relator had
exercised the functions of the Office,
how would the case stand? / find
nothing in the law, authorizing the
appointment Of a special Judge, pend
| ing contested election, nor authoriz-
ing Chancellor to hold over, until
/ his successor IL qualified, except, it
may be in section 7 of the schedule to
the schedule to the amendment of'the
/ Constitution, of which L will speak
further on.
This is q controversy in which the
public interest, as well as the parties,
is to receive most liberal considera-
ton. The public is entitled to the
officers of the law, and canot await a
contest between claimants, and in this
view, possibly, the relator or the res
pondent might be treated as de facto
Chancellors, all depending on which
would be recognized by the Execu-
tive, suitors, officers, and lawyers. Ii
cannot be determined at chambers
which of the two shall be enjoined
and which not. II, however, state
of facts were presented, showing that
Executive and officers, were refusing
to recognize the respOndendent and
claiming to recognize the relator, then
action at chambers granting an in.
junction, before settling the rights oil
parties in court, might do. To enjoin
the respondent at chambers in adj
vance of settlement of all the litiga-
ton presented in the two proceedings
and without being able to adjudicatt
that the relator should go on in the
discharge of the duties of the Office
might produce rs much mischief tx
to the public, and uncertainty as II
would avert-possibly more. For ii
advance of final hearing of both
causes, we cannot PREJUDICE the result
and act upon it. To grant an injunc
ton In this cause at chambers woult
, amount to settlement of the whole
. controversy, and be incurring thu
risk of suspending, possibly, a Chan
cellor de facto, without giving place
| TO one de jure. When the publ,
! claims are to be considered in d mat
ter so delicate, a Judge at chamber
should hesitate. So, the questions
raised In the bill and the prayer TO
g relief, should stand over to be settled
q in court. In many cases ifan iniunc
= ton is wrongfully granted, no mate
4 rial injury may result to the partie
:. or the public, but case does now an,
@ then arise, when this eXtraordinnr,
p and arbitrary process cannot issue
although, circumstances are strongl.
G i'm its favor; and | think, such is thi
3 case. Now if there was no question
. as to the right of the relator to tn
: office pending the contested election
proceeding would unhesitatingly en-
II Join the respondent. The relator in
4 sists there is no question on this point
y and relies on the It'll section of tn
schedule and the wording of his com
. mission, which says he shall hold
o "untlll his successor shall have bee
IS chosen and qualified" / do not thinl
II the commission can confer right no
y authorized by law, that is, il
language must be within the terms @
the law. But in relation to this mat
: ter, however, | am of opinion, sine
considering the question presented i
L the bill and argument, that the lay
e under the schedule, conferred upon tn
II Executive the power to commissio
10 the relatOr in the words used, and h
was entitled 10 the office, but this
u an open question, or rather, IL Woul
% not be proper to determine at chan
Al hcr', what legal consequences woul
follow the action Of the rclator in b,
coming candidate for the Ollie
which otherwise, may not have bee
vacant. However much or it'll,
II there may he in this regard, / CANINE
torc-sec what the parties might PR
e' pose 10 prove upon bill and answe
m and the questions Of law the pro
Dc might present. But with rcferent
4 10 the 7lh section of the schedule rs
" proposition Of law, which is not d
~ pendent upon any proof which couI
IS arise in the case, am constrained