Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-18
In the Case of II. A. Cox VS.. w.
w. Ward ct ais. a. 81,
From the McMinnriIle New Era

From the McMinnvile New Era H y
On the 26th day of September, 1870
; Robert A. Cox, presented sworn state
ment or petition to Chancellor Tillmsn,
stating, substantially, that on the 4th day
Of August 1870, an election for Chancel-
lor was held in the various counties COM
posing the Fifth Chancery Division; that
w. w. Ward, S. H. Collins and the petit
toner were candidates; that w. w. Ward
received the highest number of votes at
said election; that the said Ward was
about to be commissioned as such Chan
cellor; that the said Ward was constitu-
tonally ineligible to said Office by reason
of the provisions of the third section of
the fourteenth article of the amendment
TO the Constitution of the United States !;
that the said Ward was member of the
Legislature of Tennessee in 1855, and as
such took an oath 70 support the Consti-
tuition of the United States; that subse-
quenf1y thereto he Joined, and was an
officer in the armies of the Confederate
States, which armies were in rebellion
against the government and laws of the
United States; that, if commissioned and
permitted to discharge the functions of
the Office the judgments and DEGREES of
the said Ward will be of doubtful validity
and thereby irremediable injury viii be
z inflicted upon the people of said Division
and praying leave, both as candidate
and citizen, TO contest the election of the
said Ward; that said election be declared
void; that the said Ward in the meantime,
be enjoined from applying for commits
sion and from acting as Chancellor.
Chancellor Tillman permitted the con-
test and allowed the injunction as prayed
for, and directed the contest to be tried
on the 30th day of September, 1870, at
the courthouse in Sparta, Tenn, before
the Chancellor of the 4th Chancery Di-
vision.
Defendant Ward appeared, and now
moves the court to dismiss said petition
or sworn statement, and the court is of
the opinion that the motion should be
sustained; first because the court is
without jurisdiction; and secondly, be-
cause, under the facts set forth in the pc
ution or sworn statement, there is no con-
sttutional disability resting upon defend
ant Ward which dsquslifies him from in
duction into the office. eE 100 d..
The ground of the condensation is that
defendant Ward falls within the class of
persons intended to be disqualified from
holding office, by the Sd section of the
18th article of amendment to the Consti-
tuition of the United States, and the 14th
and 18th sections of the act of Congress,
approved the 31st day of May, 1870, and
known as the enforcement Bill.
The Sd section of the amendment in
question does no l1rOOriO Uig0re enforce
itself. To say the most of it. the dis
qualifications imposed by it are potential
merely, and, in the absence of appropriate
legislation by Congress, they cannot be
enforced by the courts, either State or
Federal. 18th Peters, 1876; 3rd American
Law Review, 7S4.
The 14th section of the enforcement
bill' provides for the amotion from Office
of all persons obnoxious to the provisions
of the Sd section of the / th article of the
amendment, except members TO the State
and National legislatures, by writ of quo
warrantO returnable to the Circuit or Dis
trict Court of the United States for the
district in which such person shall hold
office; and the 10Th section of the same
act makes the acceptance, holding or at
tempting to hold Office by such persons a
misdemeanor cogniZable in the same
courts. The Sth section of the same act
provides that the Federal Courts shall
have, exclusively of the State Courts, cog
nizance of all crimes and offenses, and
all cases civil and criminal arising under
the reinforcement BILL with but one
exception, which il is not necessary TO
notice here.
1t is well settled that the jurisdiction
of the Courts of the United States is, or
at least may be, made exclusive in all
cases arising under the Constitution, laws
and treaties of the United States, and
that the Stale Courts can take no more
jurisdiction than is permitted by Congress
and authorized by the laws of the State;
Story on the Constitution, Sec l, 754,
1,755; LIST Kent 397, $685. The jurisdic-
ton of the Federal Courts over crimes
against the United States is more exclu-
sive still, and cannot consistently with the
Constitution Of the United States he del
egsted to State tribunals; Story on the
Constitution, sec. 1856; LIST Kent 397,
39S, 399.
By section 912 of the Code of Tennes-
see, the Chancellor is authorized, where
an election is contested, to declare the
election Of the party receiving the highest
number of votes VOID bv reason of consti-
tutional disqualification il found to exist,
but IT is obvious that the constitutional
disqualhications in the mind of the LEXIS
lature were those embraced in our State
Constitution alone; but however this may
be, it is clear from the authorities that as
Congress has allowed no concurrent iuris-
diction to the State Courts, which has
been accepted by our State laws, that
jurisdiction cannot be maintained in this
Court, and for stronger reason this is so
since Congress has made the jurisdiction
exclusive in the Federal Courts.
The objection to the jurisdiction of the
court is fatal upon other grounds The
alleged disqualification consists in the eX-
istence of the following facts:
l. The defendant Ward held office, and
when indicted into it, took an oath
TO support the Constitution of the United
States.
\ 2. That subsequently thereto the crime
of treason was committed against the Uni
ted States.
s. The defendant Ward was guilty
agent in that treason.
1t is insisted that if these facts are
made appear affirmatively, it will be the
duty of the court to pronounce judgment
of disquali icatiOn. The grave difficulty
in the way is, the court is called upon TO
try and convict defendant Ward of trea-
son, and punish him therefor, without a
presentment or Indictment and without
allowing him the benefit of trial by jury.
This cannot be done.
1t is urged upon the court, however,
with great earnestness and ability, that
whether the special statutory jurisdiction
of the court 10 try a contested election is
comprehensive enough TO embrace the
issue sought TO be raised, still the court,
in virtue of its general Chancery jurisdic-
ton, will restrain defendant Ward from
an exercise Of the functions of the Office
of Chancellor, inasmuch as, if he is con-
additionally disqualified from holding the
office, his judgments and DEGREES will be
open to doubt and uncertainty, and
thereby irremediable injury will be inflic-
ted upon the people of the division. If
the supposed disqualification existed the
jurisdiction could not be sustained for
obvious reasons; but in the opinion of the
court the facts recitej in the petition or
sworn statement do not constitute dis
qualification within the meaning of the
Sd section of the 14th article of amend
mcnt. The whole question turns upon
the Interpretation to be given the Sd sec
ton of the 18th article, and the construc- ]
ton to be placed upon that section of the
Constitution in connection with the whole
of that instrument The allegation is
that defendant Ward was guilty of trea-
son anterior to the adoption of the 4th
article of amendment and the inquiry
is as to whether the section in question
= is to be Interpreted and construed retros-
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