Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-03-04

sLlLuLlOD OF IOlU. TOT IL u6u uUb OAPtOu
or been altered or repealed by the Legisia-
ture. II is argued, however, that sec. 3l5
of the code Is repealed by the paragraph OF
sec. 5, art. VII, already quoted which
provides IN substance that no special cleo
ton shall be held to ill vacancy In the
office of Judge, except at the next biennial
election of civil officers, occurring more
than thirty days q ter the vacancy.
These paragraphs are clearly prohibitory
in their nature, and being paramount to
any legislative enactment did repeal so
much Of Sec. 315 as authorized the Gov
enor TO order special election for Judge,
at time other than the biennial election
Of civil officers. But these clauses do not
conflict with the legislative provision that
vacancies shall be filed by appointment of
the Governor for the time intervening be-
tween the vacancy and the election held to
fill it. The utmost that is
done is to alter the time at which the Gov
erIior shall cause the election to be had;
nor is 1t easy to see how this restriction, as
TO the time Of holding the election, can be
construed into repeal Of the power Of the
Executive to fill vacancies by appointment.
The constitutional and legislative provision
can stand together, the former modifying
the latter only in prescribing adefnite time
for holding an election under its provisions.
If then the appointing power remained
in the Governor, did the facts exist author
izing him to exercise it at the date of Good
pastures second appointm mt? In o. her
words, did vacancy at that time exist?
We have seen that Ward was elected
Chancellor. His right to the Office was
perfected by his election, and the fact, If it
be so, that be did not receive his commits
sion, owing to his accidental sickness, or it
may be to the contest about the
Office, did not render him any
less the Chancellor of the division
for the constitutional term, and conse-
quently the death of Ward did create a va
csncy which the Governor was authorized
to fill by appointment.
The Governor, however, did not express
ly make the appointm ent TO fill the vacancy
oecasioned by Wards death, but as before
remarked, to fill the vacancy occasioned by
the resignation of Goodpastule.
There is case where the facts existed
authorizing the appointment, tut the Gov
ernor did not rest the appointments upon
the proper ground, but upon different
one, for we hold that the death of Ward.
and not the resignation of the first invalid
appointment of Goodpasture, occasioned
the vacancy. If then w. w. Goodpssture
was properly the appointed Chancellor, it |
cannot be seriously argued that he did not
possess the potcer to appoint a Clerk and |
Master.
Judicial officers have held the Office by |
appointment ever since the government was |
and so far IS we know it has |
never been maintained that they were not
invested with all the powers and privileges
Of the Office according TO the tenor of their |
commissions.
The remaining question Is, whether the
occasion had arrived which authorized |
Chancellor Goodpasture to appoint a clerk,
Dr. in other words, had the term of Office of /
David b. Campbell, Clerk and Master, ex-
1ired? And this brings US again to consider
he clause in the schedule of the Constitu-
ion already quoted in this opinion. |
The schedule is that part Of a written
constitution in which are comprised pro-
Tisions deemed necessary: l. To ascsr-
ain the will of the people with respect to the
Idoption of the instrument matured by a
convention, as the Constitution of State.
J. To effect without Inconvenience or en-
larrassment the transition from the old to
ne new order Of things, and to save rights
cquired under existing laws from lapsing
y their repeal. 3. To set up and
ut in operation the institution and
gencies described In the Constitutin, so far
s not already in operation. These provis-
1ns are mostly temporary in purpose and
feet, and although they are some of them
I character more or less fUnda mental,
hey seem incongruous with the permanent
rovislons Of the Constitution, properly so
on the Constitutional
p. 95.
These consider atoms tend to the conclu-
ion, that the schedule had performed lis
flee when the general election had been ,
ED under its requirements in 1870.
1t cannot be questioned that it was the
ltention OF the convention that the az
ointment of Clerks should be made by the
udge elected in August, 1870. 1t Will be |
that the convention fixed the
nae OF this election within few months
ter they had closed their labors.
They knew of course, that under the ,
'ws the first term of the courts held BY )
lem respectively must occur at farthest ,
thin six months after their qualification. !.
D that we gather tie intention of the con- :
,ntion to be, that this provision in the ;
hedule, which is temporary in its very ma :
ire, would have performed its Office before
e time OF the last appointment of the con-
slant Fite. -.
The main intent of the provision is to I
( an early time at which the appointments =
ade under it should take effect. '
As matter of history we know that these !,
'pointments were made in the other =
lancery division after the August election, Z
Id they were not made in the fifth chan y
~ division by reason of an exceptional :
ate OF facts that were unforeseen and 7
holly unprovided for in the schedule.
Again it must be remembered that the
nm Of Office Of the then incumbents, q
rs extended. not by The direct terms of P
e schedule, but only inferentially from the d
her fact that their successors were 10 be g
pointed after the election of Judges under a
3 Constitution. And if Campbell's o.
m was extended for two wears
lger, it is by the merast inipli-
ton. The view of this schedule that
'uld ptolong the time of the appointment 81
the Clerk until court was held at Garth Ct
9 by an elected chancellor is a purely lib "
II Interpretation, and is not In accordance
tn the spirit and intention of the schedule, =,
gathered from its terms, etc. 3
Without pursuing this reasoning further, 2
are content to say that at the time the IA
1testant, John A. Fite, was appointed a.
, term of Office of David q. Campbell
d fully expired, and that Chancellor
'odpssture had the right to fll the =,
Ice by appointment. The result of "
, opinion Is that his honor, "
Iancellor Crowley must be reversed and
, contestant Fite must be restored into
Ice of Clerk and Master at Carthage, to
Id for the constitutional term of six
ars, from the date of his last appoint &c &c
mt. U
William D. Gold will pay the costs Of "
s cause. a. q q