Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-02-15
COUNTY JUDGES.
SMILEY VS.. GLENN.
Important Decision by the Su-
preme Court.
The Governor to Appoint Where Va
caucIes Occur.
The State on the relation of Thomas T. Smile

cancIes Occur.
The State on the relation of Thomas T. Smile
VS. W. A. Glenn.
This is bill filed under the provisions q
the Code, section 3,409, ct SEQ, TO contes
the right TO the Office of County Judge O
Davidson cOunty-the bill alleges that a
the election held under the new Constitution
on the first Thursday in August, 1870, w
L. Turner was elected, duly commissioned
and qualified, and held the office until th,
month Of August, 1871, when be died, anC
soon after on the 2lst of August, 1871. The
Governor appointed and commissioned the
relator Smiley to fill the vacancy until his
successor should be elected and qualified
The defendent is in possession Of
and is exercising the functions OF
the Office and refuses to surrender
the same to the relator Smiley. He claims
the Office under an election or appointment
made by the Justices of Davidson, at a
meeting or court held by them, at the
Courthouse, upon the call Of the Clerk, af-
forwards ratified at the regular quartz. Nv
term on the first Monday of October, ,S7i
The question is, who is entitled 70 the
office?
Chapter 5, of title 8, Part o. the Code
is in regard to the judicial de- ,artment Ar.
ticle l of this chapter is in relation n
Judges and Chancellors. The last section
of the article, sectic,n $40. enacts that
"There shall be ele >;ted by the qualified vo-
tiers Of Davidson Shelby, Knox, Montgom-
cry and vii. ,amson Counties, person
learned IN the law, to be styled a County
Judge, W 40 shall hold his office for the
term Il eight years from the date of his
Commission, and be commissioned and
qualified as other Judges" This was taken
from an act passed shortly previous. The
Constitution in force at the date of the en-
actment of the Code provided that the
Judges of the Supreme Court should be
elected by the qualified voters of the State
at large, and the Judges of such inferior
courts as the Legislature might establish to
be elected by the qualified voters within the
bounds Of the district or circuit. No special
provision was made in the Constitution in
regard TO filling vacancies in these offices;
but it was provided that the election of all
officers and the filling Of all vacancies that
'may happen by death, resignation, or re-
mOval, not otherwise directed or provided
for by this Constitution shall be made in
such manner as the Legislature may direct -
In pursuance to these provisions of the
Constitution, the article of the Code before
referred to was enacted. The 1st section,
section 307, declares simply that the SUI
preme Judges are elected by the qualified
voters of the State at large, and ChancellOrS
and Circuit Judges by the voters of their
circuit or district. Section 30S provides for
the election of the Judges Of several special
courts. Sections 309, 80 and 81, are in
relation to the oath to be taken by Judges
and Chancellors. Sections 312, 3l3, 3l4
and 315, are as follows: "WheneveI a va
cancy occurs in any of the offices herein
named, the Governor shall order an cleo
ton by issuing proper writs of election to
fill the vacancy giving notice thereof. II
the election is of a Supreme Judge, the no
tice must be for two months by publication
In a newspaper in each Of the grand
divisions of the State, and the
writs shall issue TO each Sher-
riff in the State-if the election is Of a
Chancellor or Circuit Judge the notice shall
be for one month in one of the newspapers
of the Capital and in one or more newSpa-
pers in the division, circuit or district for
which the Chancellor or Judge is TO be
elected, and the writs shall issue to each
sheriff in the circuit or district In the
meantime the Governor shall appoint a
suitable person to fill the Office until the
election of a successor" and then follows
the section quoted in regard to the election
Of County Judges. 1t will be observed,
that although section 312 says "that when
ever a vacancy occurs in any of the offices
herein named, the Governor shall order an
election" etc; yet special direction as to
lib" time and manner of giving the notice is
only provided in regard to the election of
Supreme Judges, Chancellors and Circuit
Judges, but no direction on this subject is
given in regard to elections TO fill vacancies
In the case of the other Judges provided for
in section 308, or in regard to County
Judges. Il is argued that it was not made
the duty Of the Governor to order elections
to ill vacancies in county judgships, but
this was left to the sheriffs of the several
counties and that the provision of section
81, which says, 'In the meantime the
Governor shall appoint suitable person to
fill the Office until the election Of a success
sol" applies to those cases in which the
Governor is specially directed to order and
issue writs of election, and that as to va
cancies in county judgships he had no duty
TO perform. Under another title in the
Code in an article upon the subject Of cleo
tons by the people, we find section S23,
which provides where two regular elections
for Judges and Chancellors shall take place.
Section S24 enacts, that "The first election
for County Judge shall be held at the same
place and by the same officers as other
county elections, on the first Saturday of
March, 1858, and under the same rules and
regulations prescribed for other county cleo
tions-all subsequent elections, except for
vacancies which shall be held whenever
they occur upon giving twenty days notice,
shall be held on the first Saturday Of March
every eight years thereafter"
This, as will be seen, provides the length
Of notice to be given for such elections, but
does not say who is to order the election.
Section S27 provides, that "all special cleo
tions for county officers authorized by law
shall be ordered by the Sheriffof the county,
or the Coroner, in case the Sheriff cannot
act or in case there is no Sheriff." Section
S28 enacts, that ''all other special elections
are to be.ordered by the Governor, who
shall issue writs of election directed to the
Sberiffs of the county in which the election
Is required TO be held" 1t is argued that
County Judges are county officers, and
therefore, ali special elections for County
Judges are TO be ordered by the Sherif-aS
enacted by section S27. On the other hand
the express language Of section 81 is
Gfwhenever a vacancy occurs in any OF the
Offices herein named, the Governor shall
order AN election" "Herein" does not
mean the section, for there is no office
mentioned in the section, and it must OF