Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-02-15

the Governor, previousI thereto; tina
then provision in question does no
necessarily take the power away il
such plain and positive terms, q
20 leave no doubt of its meaning
IL would seem to be very clear that, as thr
election OF county officers then in existence
had already been provided for by law, THU
clause of the Constitution was intended Il
have more special reference to Offices after
wards to be created by the Legislature, al
though it will include within its meaning
''al county offices created by the Legisla-
Gure, and must be so construed. 1t is evil
dent, however, in the event county Office
should pc Hereafter created by the Legisla
tuIe, that that body must determine how
such Office is to be filed, whether by the
people or the County Court, for although
this clause of the Constitution does say that
the office shall not be filed otherwise than
by the people or the County Court; yet it
does not say in which one of the two modes
the Office is to be filled, and it is clear that
in such a case there must of necessity be
legislation upon the question before this
provision could be fully carried into effect,
and in some cases a serious difficulty might
arise as to whether the power was to be
exercised by the County Court, held by the
Judge, or the Quarterly held by the JUS
tees; the clause only says the County
Court. 1t is true that if the provision in
question was clear prohibition upon the
exercise of the power by the Governor, it
might have the effect to prevent the exer-
else of the power upon his part without
vesting the power elsewhere. 1t might have
said that the Governor should not exercise
the power without saying who should.
1t is argued that, in this particular case,
this clause of the Constitution executes it.
self. That is to say, it provides that the
Office shall not be filed otherwise than by
the people or the County Court;
and as other parts of the constitution Lro-
vides, that there can be no special election
by the people; therefore, the term or va
cancy until the next election, cannot be
filed by the people, and must therefore be
filed by the County Court, the only remain
iEg mode allowed by this clause. We do
not cOntrovert the correctness Of the prin-
ciple commended for as established in the
case of Brien VS.. Williamson, Z Howard,
Miss. reports in a case where the principal
is applicable. But in this case it would
make this clause, as to this particular of
flee, applicable alone to the vacancy eX-
tending to the next election for the filling
of the Office of County Judge, is, we
think, vested alone in the people by an
other part Of the Constitution. Section 4,
article vi provides that the Judges of the
Circuit and Chancery courts and of other
inferior courts shall be elected by the quail
flied voters of the district or circuit to
which they are to be assigned; and as we
have seen, that if it even be conceded, that
for some purposes, a County Judge is a
county officer, he is at the same time a
judge of an inferior court. We think he
comes clearly within the meaning of the
clause last quoted, and the Legislature |
would not have the power to provide for the |
election Of County Judge otherwise than |
by The people. According to the argument |
for the defendant, Sec. II, Art. Il, ap- |
plies in most cases not only to filling the of |
fee in the first instance, but also as to fill |
ing temporary vacancies. No distinction in |
this respect is made in this clause, although |
It is clear the two powers must be different, |
for under another clause in the constitution
no special election can be held, and so, no |
such vacancy can be filled by the people. |
\ ct this clause makes no distinction between |
filing the office and filling the vacancy. !
Assume for the argument, that section II, |
Art. n, may include a County Judge, |
Toes it prohibit temporary appointment by |
he Governor until the next election? 1t
'ays the office shall not be filed otherwise
han by the people or the County Court.
Other portions of the Constitution pro-
tide, that the Judges of the Circuit and
)ther courts shall be elected by the people.
This is certainly equivalent to saying
hat the office shall not be filled otherwise
han by the people, and the Constitution
has no provision for the filling of vacancy
n the Office of Judge, by an appointment
If the Governor. But it does contain
provision that the election of all officers and
he filling Of vacancies not otherwise directed
)r provided by this Constitution shall be
made in such manner as the Legislature |
nay direct, and under this power the
legislature directs the appointment to be
made by the Governor, and this power of
appointment as to other Judges has never
leen doubted. The provision that the of
ice shall only be filed by the voters, has
lot been supposed to take away the power
# the Governor to fill a temp OraTy vacancy,
Now the Constitution has not otherwise d.
ected or provided for the manner of filling
vacancy in the Office of County Judge
md we think the power to provide for fill
ng the vacancy must, under the Consti-
ution, vest with the Legislature;
md as the law stood on the 21st of August,
1871, that power was vested in the Govern
II. The only escape from this conclusion
We think would be to say that there was no
provision for the vacancy at all, and the
DfEice must remain vacant until tbe Legis-
ature remedy the defect, for we think it
lear that at the time the justices of the
county had no such power. Every pre-
of law as well as reason of public
policy, is against the assumption, that there
vas no provision for the vacancy. We
hink upon the facts stated in the bill, the
elator Smiley is entitled to the Office. The
lecree will be reversed and the cause re-
handed for an answer. MCFARLAND.