Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-10

Tbos II. Galloway, in error, VI. V. II. Sturm.
The acceptance Of the Office Of Supreme judge
of Tennessee by a member Of Congress vacatec
the seat in Congress. 1t does not inyaiidate hi!
risht to the office of Judge.
On the resignation Of Supreme Judge under
the Constitution OF 1885, the Governor had nj
power 10 FL tho vacancy longer than until thu
Office could be filed by election snd it was his du
ty to order the election to be held after the tw,
months during which notice was required by laV
to be given.
Sec. of the schedule to the Constitution o.
1885 did not enlarge the authority of the Cover
nor In this respect The Governor under 1t ha6
no authority to issue commission to fill out al
unexpired term.
A Judge under such commission might lawful
ly act until the Vacancy was filed by election.
The acts Of judge acting under commission
are valid as acts of an officer de facto and taii
principle a; plies to proceedings OF parte.
Motion to dismiss writs of error.
L. A. Gratz for the motion.
OPINION.
This is q motion to dismiss a writ OF
error and supersedeas granted by Horace
Maynard, Judge, on the 18th of Septem-
Der, 1868. The motion is based npon
the allegation that Mr.. Maynard7 had nc
authority as Judge of the Supreme
Court to grant the writ. 1t is said that
he was member of Congress at the time
of his appointment by Gov. BEownlow as
a Supreme Judge to fill out the unexpired
term of Judge Milligan, who resigned the
position; and that being a member OF
Congress he was ineligible to the office of
Supreme Judge; snd for that reason his
appointment was illegal and void. AS
Stunning that we can judicially know, that
Mr.. Maynard was a member of Congress
at thetimeofhis appointment as Supreme
Judge it does not follow that his appoint
ment for that reason was illegal and void.
1t is true as argued that by the Constitu-
ton of Tennessee, Art. 6, Sec. z, and the
Code $ 748, a member of Congress is dis
qualified for office under the State gov
eminent, and is guilty of misdemeanor
in holding any such office, but it does not
follow that because Mr.. Maynard whilst
member of Congress accepted COM
mission and qualified as Supreme Judge,
his acceptance of that Office was a nplhty.
The consequence was, il Gov. Brownlow
had the authority to appoint him, that he
thereby surrendered his right to seat in
Congress. l. is settled that on the &C
ceptance and qualification of a person to
a second office, incompatible with the one
he ia then holding the first offi@e is ipso
facto vacated. It operates as an implied
resignation; an absolute determination of
the original Office. People vs. Carrique.
Hill 80. Xix We. Trelleny. Bur. 1876
Millward vs.. Thatcher I'd, T-R. 81; IS
Petersdorff's Abr. 5.
1t follows that when Mr.. Maynard was
appointedrss a Supreme Judge he vacated
his office as q member of Congress and
became a sudgc of the Supreme Court
provided Gov. Brownlow had any author
lty to make the appointment; nor does the
fact that Mr., Maynard continued to serve
out his time as member of Congress,
affect the question before us. That was
matter entirely for the adjudication of
Congress.
This brings US to the investigation of
the legality of Mr.. Maynard's appoint
ment as a Judge. The election of all
officers and the filling of ali vacancies
that might happen by death, resignation,
or removal, not otherwise direct d, and
provided for, by the Constitution of 1885,
was directed therein to be made in
such manner as the legislature might pro-
vide. Art. 7, sec. 4. By sec. 312, of
the Code it was provided, that whenever
a vacancy occurs in the office of Supreme
Judge, it is made the duty of the Cover
nor to order an election, by issuing pro-
per writs Of election, and by sec. 315, it
WAS provided, that In the mean time the
Governor should appoint a suitable person
to fill the Office, until the election of
successor, and by sec. 3l3, two months
notice of the election was required to be
given. 1t follows that upon the Iesigua-
ton of Judge MiIligap, the law required
Gov. BrownlOw to issue writs of election
for bis successor, and until the two
months notice should expire, he could fill
the office, by temporary appointment.
He had no power under the Constitution
or law TO appoint and commission Mr..
Maynard to fill the uRexpired term of
Judge Milligan. All the power he legally
had, was to appoint Mr.. Maynard, until
Judge Milligan's successor was elected by
the people, and the law made it his duty
to have the vacancy filled by the people,
after giving two months notice Nor
was the power of Gov. BTOwnlOw en-
larged by sec. 7 of the schedule to the
amended Constitution of 1866. By that
section it was provided that officers
already appointed or who might
thereafter be appointed, should con-
tinue to hold their offices until
their successors should be elected or
appointed ard qualified as prescribed by
the laws and Constitution. Upon the
resignation of Judge Milhgan this clause
in the schedule conferred upon Gov.
BroWnlOw no power to appoint his sue
cessor, otherwise then was provided for
by Law. 1t follows that Gov. BrownlOw
had no authority to commission Mr.. May
nard as Supreme Judge to fill out the
unexpired term of Judge Milligan.
But it does not follow that because Mr..
Msynard's commission as Supreme
Judge was illegally issued authorizing him
to hold until the expiration Of Judge Mil
ligan's term; therefore his acts as such
judge are void. Gov. BrownlOw had au-
thority 20 appoint and commission him
until Judge Milligan's successor should be
elected If Gov. BrOwnlOw had pursued
the law and ordered an election, Mr.. May
nard might very well have acted under the
commission until the election of Judge
Milligan's successor, at which time his
commission would have expired. And on
another ground, Mr. Maynard's judicial
acts under his commission would be valid,
although his appointment and commission
may have been Illegal and void. In that
view Mr.. Maynard was Supreme Judge
| de facto and his competency as such cOulC
not be inquired into by the parties affected
by his acts. This position is well estab-
lished in many cases in this State. The
case of Blackburn VS.. the State, Head,
$50, is directly in point. See also 8
Sneed 514, Hum. 1913, 2 Cold, 6O5. The
fact that the official act of Mr.. Maynard
complained of was an exparte exercise
of Judicial functions does not take the
case out Of the principle. 1t is well
settled that thejudgments and official acts
of an officer de faCtO are binding anC
valid, and the competency of the function
airy acting under commission cannot b;
inquired into by parties affected by them
He mdy be removed from the office and
his powers terminated by the proper pro
ceedings, but until that is done, his acts
are binding.
The motion to dismiss is therefore dis
allowed. NICHOLSON, G. J.
A true copy.
Test: ]. F. DEADERICK, Clerk.
A BOsToN bride thought it would bt
smart to refuse to agree to ''obey" hel
| husband in the marriage ceremony. She