Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-11-06

Decision of Chancellor Shack eIfOrd--
The Mayor and fOur Aldermen En-
Joined from Receiving Salary.

OF DudCkclAO4A Al hAS NNS~ -
Thornberg rs. the Mayor and Aldermen
IF the city of Nashville, granting the
PRAYER of the injunction as to the Mayor
and four Aldermen on the ground of
lack of property qualification, and enjoin-
ing them from receiving any salary until
the case is decided.
State of Tennessee and the relations Of Ii. II;
Thornburg Solicitors, u.s. A. L. Alden and
others.
This bill has been fled by the REALTORS |
against the defendants in which 1T is
averred on the 18th Of September, 1865, an
election was held in the city of Nashville
for Mayor and Aldermen of the city. The
bill alleges that Alden claims to be elected
the Mayor, has no real estate Of the value
of $500 which by law be is required to
own in his own right. That six of the
said Aldermen TO wit: w. c. Kinney,
John McGavock, P. T. Coyle and H. D. /
Gaines have no real estate. That IL. ID.
Grant and A. ID. Otterson, claim TO be he
owners Of strip Of land which was trans
ferred to them with a view to make them
eligible to the Office. The bill further
charges w. J. Murphy, William Wright,
H. G. Thayer, r. S. Gains, j. II. Summer,
Henry Jolly, Wiley Duke, Squire Paio,
William Gray, Randall Brown and j. w.
johnson were elected councilmen, and
that they have no real estate as re-
ouired BY law and that their offices
are vacant and should be filled by the par
ties who secured the highest number of
votes. The bill further charges that some
time before the election Hopkins, who was
a candidate and Commissioner of Regis
! tration, had procured large numbers of
colored men to be brought into the city
| from various places; that he, with con-
sent and knowledge of the other candi.
dates. caused certificates to be Issued and
mt in the hands of third parties to be de
| liyered TO foreign voters that he discarded
the rule prescribed in the franchise law in
issuing certificates, and issued TO Alden
men but refused to issue them to Thorn
burg men, and on the. day of election
many certificates were in the hands OF
third persons that many young men were
refused certificates that were entitled TO
them because they were for Thornburg ;
that, by the aid of the Commissioner OF
Registration, several hundred illegal votes
were cast, together with the certificates
illegally issued, would have changed the
result and elected the REALTORS. Other
causes showing illegally in the election
are also set out in the bill. That by reason
of these frauds the government OF the
CITY has passed into the hands of persons
whoare Ineligible and who are exceedingly
offensive to the whole people. That among
the old cit liens and business men of the
city the Alden administration with its
ruinous financial policy for another year
will bankrupt the city, ruin its credit and
paralyze all business. That the Mayor,
Aldermen and Common Council were
sworn in one after another after notice to
| contest The election, etc. The bill prays
the defendants be removed from ofhc,
which they claim by virtue OF said cleo
ton. That Alden be enjoined from re-
ceiviug salary until the questions involved
are heard.
To this bill the defendants demurred and
assigned many other causes of demurrer
the following:
Here follows the demurrer submitted
by the defense, and already published
when the bill of injunction was argued.
1t follows from this section of the Cod
that this court has no jurisdiction to Try
the validity of the election held for the
: Mavor, Aldermen aud Common Council OF
the 2Sth Of September, 1865, consequent.
il Is unnecessary to reconsider that part o
the bill which alleges and charges tn
election was illegally holden. 1t Is true
that fraud, in legal sense, yitiates al
transactions into which il enters, but tina
must be inquired into in the form pre-
} sented bv law, by express provision Of thC
statute, this court is precluded from en-
teriur into the consideration OF the ques
ton. By section 10 of the act passed
18th of February, 1858, 1t i5 expressly pro
yided that each Board of the City COunCi
shall have authority TO decide ultlmatei
upon all questions relative to the qualiica
tions. election and returns Of its members
l This section Of the act confers the iurisdiC
= ton upon the CITY Council, and it follow
therefore that this court cannot enquIr
into the legality Of the election, and upo
that branch Of the bill the demurrer mus
be allowed. By section II Of the act passe
J 18th Of February, 1858, the Mayor shall b
/ ! elected by the qualified voters OF said city
and shall hold bis Office for one year ant
until his successor shall have been eisctet
and qualified, and no person shall b
eligible to the Office of Mayor who is not
r | citizen Of the State of Tennessee, and VIII
has not been a citizen Of the city Of Nash
!, vile Immediately preceding his election
i and in possession of freehold estate i
: said city of at least the value of S50l
h though he at any time after his election II
, main bevond the limits or cease 10 be sucl
- freeholder, he shall thereby vaclt
/ his said Office Section Is of said al
= provides that no person shall be eligible
p either the Office of Alderman or Council
men unless he be a citizen of Nashville,
" bona tide citizen of the city and FREE
4 holder in the ward in which he is elected
B, Any Alderman or member Of the COunc
4 ! after the election, removing from or Cea:
ing to possess q freehold estate in his war
hall thereby vacate his Office. 1t is IL
ssisted for the defedants these provisions
r the act Of 18th Of February, 1858, are r
peaied BY the provisions of the sixth Sc
e ton of the act passed March %, 1856
d That was an act to amend section 33I of Ii
: Code, giving the right to elect two Justic'
Of the Peace for each ward.
y Section of said act provides that terri
h tory adjoining the city of Nashville una
r be added thereto aud Included in the CO
- porate limits thereof, providing for !ayin
y! it of upon petition Of the citizens an
le submitting it to the Mayor and Alderme
is and Council, and if they consent and
d majority of the citizens, then it shall b
~, come part of the city of Nashville t
test thi1 an election is to be held
!, Section of said act provides that
r. the next annual election for Mayor, Aide
!. men and Council, the voters who are
favor Of said election of said officers f
: the term Of two years, shall put the Ter,
r of office for two years on that ticket and
d A majority Of all the votes polled shall
- in favor Of the election Of said officers Il
4 term of two years, then and thereaftt
' the charter of the city Of Nashvil
d, shall be so amended, and ga
* election shall be held accordingly, az
% thereafter the qualification Of Mayor, A
dermen, and Common Council shs!
. citizenship and re-idence in the city
to Nashville for two whole years, next pr,
Ie ceding the election, aud no other7. Up,
Al an examination Of this Act, it IL eYldo
~ the Legislature did not design or intend
d" repeal the law requiring freehold int
est in the Mayor aud Aldermen, unlC
the provision of tie Act was accepted, e
tending the time of holding Office to ty
years. If 80, why use the words then al
Oh thereafter, evidently intending, upon TIL
to adoption aud amendment of the char
;.l should depend upon The extending OF {
term for which they should hold office
IL" two years, that not having be
lai adopted the Act is net in force, &C
e scquently it is requisite under
on provisions Of the law the Mayor sh OF
own a real estate Of the value Of $500, a