Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-09-03
HUDSON VS.. FLIPPIN.
The Contested EleGtiOH---DscislOn of Spe-
CiaI Chancellor Heath.

The Contested INSTRUMENTATION of Spe-
CiaI Chancellor Heath.
On Wednesday, his Honor, r. r. Heath,
sitting as Chancellor, by agreement of
counsel in said cause, gave the following
decision:
When [ commenced my sitting in this
cause, L knew only that the present was a
controversy between Judge Hudson and
Judge Flippin, as to which of the two had
a right to act as the Criminal Judge of
Shelby county, and to receive the emol-
uments thereof. / knew nothing of the
facts at issue between these parties, nor
of the law under which it Was sought 20
enforce the rights, or supposed rights, OF
Judge Hudson. who is out OF possession,
against Judge Fiippin, who has been adj
mitted, and has been acting and still is
acting as such Criminal Judge.
A perusal of the papers has advised me
as to the facts, and the discussions Of the
learned counsel before me and their very
able and comprehensive briefs, tiled by
them, have advised me of the law of the
case. From the papers filed, 1 learn, that.
on the 18TH day of May, 1870, a public
election WAS held in Shelby county, for
CEfuAlnaA y u0At bubEtOAs anu luhb % uhHO
Hudson and Judge Flippin WERE, both OF
them, candidates for that position; and
that, on a comparison of the polls, Judge
Flippin received the certificate of cleo
ton, and was ~thereupOn duly admitted
and qualified as such Judge, and was act
ing prior TO the institution of these pro-
ceedings, at the timeo of such, and cOntInu-
ously mp TO this time; and thereuponJud
Hudson files the following petition, to-
Z a. = Al NbapaYnAWv thu frnaaNF m
bent, Judge Flippin, meeting the petition
with a plea, which plea is as follows, and
with the petition aforesaid, is made part
of these proceedings: 3 And the
contestants, Judge Hudson, therefore
moves, through his counsel, to strike this
plea from the record, on the allegation
that after the petition no written plead
ings are authorized, and none can be had
and this motion being debated by our
sci, and heard and understood, it is con-
sidered that the objection is well taken,
and that said plea be, and it il, hereby
stricken fro n the record, since no written
pleading is provided for, after the petit
ton. See Code, section 900 et seq; his
simply prescribing that h contestants
F." shall present a sworn statement of the
grounds of contest to the chancellor" no
right being given to plead in writing, the
act is to be strictly construed, as 1t
was in Wade VS.. Murray, 2
Sneed so, where it was held no
appeal lay from the chancellOr's decision,
as the act did not expressly give one; he
party filing the plea is, however, TO ave
the same benefit in the evidence, as was
sought by plea; and thereupon Judge
Flippin, introduces the written admission
of Judge Hudson, filed herewith, and
made part hereof, and will be found an
nexed 20 or connected with the plea, or
filed on the same, whence it is made to ap-
pear, that prior to, and at the time of such
elelection he was District At
torney of the United States for
the district of West Tennessee,
and that he was all the time, and yet Is,
in said office, and in the receipt OF its
profits; and it is insisted, therefore, that
Judge Hudson was "~ineliglblen at the
time of his election; and that no person,
save one who is entitled to, or has an in
terest in, such Office so contested for, can
successfully contest; aud that these pro-
cssdings must be dismissed. 1t will be
observed that the Code, section 74S, pre-
seribes not who are ineligible" or sseligi-
ble'' to Office. but simply says that "all
free white males of the age-of twenty-one
years." etc, etc, ARE qualified to hold
~ofice-except persons holding any Office
Of profit or trust under the United
States" The exact words are not quoted,
but the substance is given. This act says
nothing in terms as TO eligibility but
merely says who may or may not hold
and on the one side it is commended, this
means he is '~'ineligible' to such office,
and on the other, simply that he could
not "hold' such two offices at the same
time. To the judicial mind it must, l
think, be- apparent, that the lawmakers
understood the difference between elioLl
billy and holding. Article 2, section 10,
of the old Constitution, says "no person
shall be a Senator unless, etc, and i'm
mediateIy adds nor be eligible to any Of
flee or place of trust, the appointment to
which is vested in the Executive" etc
etc. Again, in article 3, section 4, the
Constitution say the Governor shall
''hoLd his office for two years, and until
his successor shall be elected,and qualified.
He shall not be eligible more than six
years in any term of eight" 1t would be
Indecent in me to suppose the Lsgisla-
ture of Tennesss had not knowledge
enough of the State Constitution to un-
derstand the difference between "eligi-
bility" and i~holding;'' it seems to me
plain that eligibility applies to the time of
election, while holding applies to the
time of induction into office, or to a sub
sequent time. This new Constitution says,
Article 2, section 6: "Nor shall any per-
son in the State hold more thanone lucra-
tive office at the same time." III VIA.
The contestant says through his eOun-
sci that II is not to DO presumed that he
will do an illegal act; hence, III needful,it
is to be presumed he will resign before
being induetedin, or entering upon, his
new office, and that this can be done at mis-
will and pleasure, and The resignation be-
comes absolute, so soOn as mailed.
Wherever the right of resignation has
arisen, either in the State or Federal
courts, a. in the case of Hoke VS.. Hem
derson, 81 Devereux, Law l, North Caro-
lima, so far as L know, or can ascertain,
this principle has been affirmed; and /
will presently show the case in North
Carolina is mo- in conflict with these de-
%eisions; most OF the cases viii be found
collected in the State of Nevada on the
relation of NOurse VS.. Clarke, Sd Nevada
reports, 800, where the principle is broad
ly laid down that a party holding an of
flee may resign when he pleases; land
this resignation does not depend on
''the acceptance or rejection by the Presi-
dent" quoting the words of the Federal
court and adopting them. oRI ZION
The only case in apparent conflict is
the North Carolina case, in which, on
close examination and comparison of
facts, with the facts in the other cases, it
will be seen the conflict is only apparent.
The other oasss of officers resigniug,
were cases where the holding did not par-
take Of the nature of a contract: that is,
the designations were of officers who gave
no bonds for the discharge of their du-
ties; while the,Nerth Carolina case was
the case Of the cierk of q Superior Court,
appointed for life, and who had to give,
and did give, heavy bonds for the per-
formance of his duties; and it may well
be that in such a holding, thus partaking
of the nature of a contract, IF not an
EXPRESS contract, the resignation must
be made to and accepted by, he Sow
ereign who appointed to office; indeed,
I think that is so, and that in this case,
in the other cases, the party may exer-
else the right of resignation, at his own
will and pleasure, without impugning
Hoke VS.. Henderson, which, after the
Dartmouth College case, I look upon as
the most valuable constitutional case ever
decided.
These cases establish that a man hold
ing an office may resign at pleasure, and
hence If the contestant resign his ONCE,
any time before admission, or rather mo-
ton to admit, he will not "hold any Of
flee of profit or trust under the Federal
Governments the Law forbids holding,
but says nothing as to eligibility.
The contestant, through lis counsel,
that there is smother
principle of law, which removes this
objection to his admission, and hence to
his contesting Judge Fuppin,s rights TO
Office, and.that principle Is, that The ac-
cepteuce of one Office gpsOfacto vaeates 3
ofice. So that IL Judge Hudson
Shall accept this Office, he il out Of the
other. and hence he viii not "h0ld an of
OF profit or trust, - under the Federal
government; and am thus compelled to
pass ON this position.
As long ago as Dyer's Reports It was de-