Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-02-23
TIE BARRY-LAUCKE CASE.
Argument OfJudge Guild Ina the Con
tested Election Case of Tines. barry
Against James +. Hiaucke, I'm the Su.
preIne Court of Tennessee.

pear, has entered into this contest wit
no view of his own aggrandizement, or {
crafty any asperity of feeling growing on
4 of this election. He has entered the con
test to indicate his own rights and es,
pecially those of an outraged peopl
trampled upon in the election of thu
18th of March, 1868. = -
In the case of Marshall against Kearns
ID Swan, page II, it is held that tbs
certificate of the returning officer of an
election is only prima facfe evidence Of
the election, and it is competent to falsify
it by the truth of witnesses. Each
county of the State is laid off in districts
ofconvenient size, Constitution, Art. vi,
Sec. 49, in which places are designated
| for holding all popular elections. This is
justly very important feature in our
system and policy. 1t is valuable in a
popular point of view, as il enables every
citizen conveniently to exercise the elect
i've franchise at home in his own little
community. 9.sa aIiT aTh3- gsI -.
In view of this policy it is made the
imperative duty Of the Sheriff, (now the
registrar of votes) to hold all popular elecss
i 1919 80 t11O pt1CGa ucoiknAtSu III StsSh
civil district. Code, sec. 1877. ri
| Not to hold an erection in each civil
district is an injury to the people at that
| district, and fraud on their lawful right
to vote in that election and if it shall be
made appear that the result of that cleo
ton might have been different, had the
election been held in such district, then
the election was illegally held and void.
A return of such an election is not relia-
BILE evidence that the person returned as
elected is the choice of the people in the
Judicial or Chancery district.
tits immaterial what the motive Of
the officer is, whether from corruption, or
fraud, or negligence; in either case the
people have been deprived of an impora
tant and highly valued right. The people
being the appointing power it must be
fairly and fully exercised, and if this does
not appear, the party returned is not cleo
ted to the Office.
These important principles are an
nounced By our Supreme Court as ap-
plying to a minor Office of clerk of one Of
the courts. How much more important
it is to the rights of the people that they
shall be applied to the election Of Chan>
cellors and Circuit Judges of the State, (
whose high duties are to expound and
enforce the law, maintain the rights Of
the people, and while they punish crime,
to vindicate and protect the innocent
against false charges, involving life or
liberty. The Judges compose the third,
and one of the most important departs
ments of the government, the Judiciary.
The appointing power under the consti-
tuition rests with the people, our govern
ment being founded upon the will of the
people. In the exercise of this power
that will shall be fairly expressed through
the ballot box; consequently sll cleo
.tions should be conducted strictly accord
ing to law they should be fairly and
legally advertised by the party legally
designated to hold them; they shall be
opened and held by such person from
nine until four O'Clock on the election
day =; the Judges and clerks must
be appointed by him and legally sworn,
and the election held at the place of |
voting in each civil district composing the |
Chancery division and if it shall appear
that by fraud, ignorance or negligence, the
election was not so held, and If it shall |
further appear that the result Of the cleo
ton might have been different if the |
election had been legally held, then the |
election IS void for illegality, and the per> |
son returned is not elected and not enti~ |
tied to hold the office. 1t can make no |
odds from what cause there shall be |
failure to perform those duties it is not |
necessary to inquire into the motives Of |
the returning officer, whether his failure |
of duty resulted from fraud, or corrup- |
ton, or from ignorance, or neglect, the |
injury to the people is the same they |
have been deprived of a cherished right |
of exercising that power vested in them |
of depositing their ballot designating the |
person to hold this high judicial station.
And in every popular election, where |
a large portion Of the people, sufficiently |
numerous to have changed the result, |
have from any cause been deprived Of this |
right, the election so held is illegal and |
void.
In view Of these great principles that
are the foundation upon which our req |
government rests, let us look |
into this record and see from the proof
how this election was held, and by these
principles test its validity. By the an
cient law the Sheriff was the officer of |
each county designated to hold these
popular elections. By the late franchise |
act the registrars Of voters are designa-
ted to hold them in the room and stead
of the sheriffs, under the provisions Of
the law prescribed for the latter. In this |
case the Governor issued his proclama-
ton to the sheriffs of the respective |
counties to hold the election; it was not |
issued to the registrars of voters Of each |
county, as prescribed by the franchise |
act passed shortly after the proclama-
ton was issued. This district is COM |
posed of the counties Of Jackson, Macon,
Sumner, Robertson, Montgomery and |
Stewart ninety-one civil districts. and |
places designated for holding this popular |
election long territory, the border |
counties of Kentucky, reaching from the |
spurs of the Cumberland mountains to |
the Tennessee river. One of the most /
important duties to be performed by the /
Registrar in holding the elections is to adj
vertise the same in the published papers |
of the districts, and at the court houses |
and the civil districts for at least twenty |
days preceding the election. This inn
portant duty was neglected by the Reg
istrars of each county composing;the dis
trict, which should void this election.
1t has been adjudged by our Supreme
Court that the failure to give the twenty |
days notice required to the owner Of
land, in possession, yoids the sale: upon
the same principle this lack of notice
should void an election.
The sherifs of the counties composing
the judicial district were procos ling to
hold this election on the 2Sth of March,
1868, having in many Of the dis
tricts appointed the judges and clerks
yet the Registrars OF each county /
having failed to discharge their
loyal duties, step into the county
towns where Loyal Leagues" exist, and
where corps Of voters can be rallied at
a moments notice to the polls as Rode
rick Dhu's clansmen at the blast of his
bugle would rally, and assumed to hold
the elections of those precincts, and re.
iect the returns Of the other civil districts,
when the majority appeared against
Laucke and in favor of Barry.
Adding the rejected districts to those
districts not having an opportunity to
vote makes forty districts who are
thus deprived Of their choice in this cleo
ton out Of the ninety-one and by such
and fraud returns were
made in favor of Laucks. This election
does not assume the dignity of a farce
it is so mixed up with failure Of duty,