Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-03-04
! IMPORTANT DECISION.
WIN. ID. Gold vs.. Jne. A. Ftte. -.
80 o-i.-a t3GE Ds5 I ir-
Contest for the once OF Clerk and
Master in Smith County. 80

Contest for the 0fI7ce OF Clerk ant
Master I'm Smith County. =
b.4i MS u 6c
Below we give the opiaion delivered b
Burton, j y Of the Suprems Court in tn
above named case, which was argued 70
plaintiff by A. A. Swope and Robt Can
trell, and for defendants by James w. Nc
Henry, w. II. Dewitt and J.EW. Head. q
This is contest for the Office of Clerl
an Master in Chancery for the county o
Smith. Jno. A. Fife claiming the office b.
appointment, made on the - day of Au
gust, 1871, by Chancellor Goodpasture, and
WIN. d. Gold claiming under appointment
of the present Chancellor, Wm. 6. Crow
ley, made at the October term, 1872, at tn,
Chancery Court at Carthage. s
At the the term of the Chancery Cour
last mentioned, Gold was appointed snC
induced Into Office; Fite, claiming anC
holding the ofics under bis former appoint
ment, excepted to the proceedings. e
A Dill of exception is sgned by Chancel-
lor Crowley, and in this way the partie;
HAYES cen proper to assert their relative
claims to the Office in suit. J81q
The facts neces sary to decision, Of the
case will be best shown by stating them in
connection with the general propositions Of
law argued in the case, and to which they
refer. a tcssi vieIaa
l. The first position assumed by the
counsel of Gold is, that when Fite was
appointed in August, 1871, there was no
vacancy in the Office, but that the same was
filed by one DGuid K. Campbell, who was
not removed, and whose term of Office had
nos expired. Campbell was first appointed
to Office on the 18th day Feb, 1865, by the
then Chancellor Shaekelford. He held the
Office until the Goth day of Feb, 1871. On
that day the appellant, John A. Fite, was
appointed Clerk and Master by Chancellor
Goodpasture. It should be noted here,
though somewhat out Of its order, that
Fite was twice appointed as above
stated, on the 20ih day of Feb, 1871.
Under this appointment he held the Office
until the 21st of August following, when
he resigned and was Immediately reap
pointed by Chancellor Goodpasture. Il
The argument that Campbell was the
regular incumbent of the office at the time
of the first and last appointment of Fite, is
pIedicated upon the construction given by
the counsel to the second paragraph of the
first section of the schedule of the Constitu-
ton Of 1870, which is in the following
words:
"Oficers appointed by the courts, shall be
filed by appointment to be made and to
take effect during the first term of the court
held by judges elected under the Constitu-
tiou.n
It is said that the October term, 1872,
was the first term of the Chaneery Court
for Smith county held by the Judge
selected" under the new Constitution, and
that although the constitutional term of
Campbell of six years had expired, it was
extended by the schedule until the term of
the court held IS aforesaid, at which time
the appointment of his successor was to
take effect.
There Is no doubt that by the constitu-
tional provision above referred 10, it was
that the appointment of
Clerks and Masters in Chancery through
out the State should be made and take eff
feet at the time really indicated in the
Schedule. The term of Office of the in
cumbents was, as itlswfully might be, SUBJ
Jet to kind of procrustean process by
which it was Topped off or extended to meet
The constitutional requirements.
A proper construction of the schedule
determines whether Campbells term of
office expired, but the case involves the
more serious enquiry as to whether Good
PASTURES appointment as CHANCELLOR was
warranted by law, aud did it confer upon
him the power of appointing at The time be
exercised it-and before giving our views
,fthis question we proceed to state such
acts in regard to il as will render inteiligi-
Die our solution Of this question,
The 5th Chancery Division composed in
,art of the county of Smith was created
u the Legislature in 1870, and at the first |
General election for judicial officers held uu- |
Ter the constitution of 1870, and in August |
# that year, W. W. Ward was elected |
Chancellor of that division. Il does not |
ppear from the record whether he was |
yer commissioned or not, but it does ap-
ear theoretically that be never held court |
t Carthage. He sickened in November or
december, 1879, and sIteF protrscted i'll
less he died on the 10Th day Of April, 1871.
Don after Wards election, one Rob't A.
Iox contested his election on the sole
round that Ward was disqualified to hold
he Office by the fourteenth amendment of
be Federal Constitution. 1t is not intimat-
d that there was any iTTegulariJy in con-
acting the election, or denied that he
Ward) was elected by large majority.
Soon after the contest arose, W. W.
was commissioned to fill the
flee of Chancellor, pending the contest.
soon resigned the offics, but
-as again appointed add commissioned by
IoV. Senter on the 25th day of July, 1871.
he second commission recites that the ap-
ointment was made to hll vacancy oe
asioned by the resignation of the said W.
2. GOOdpGstlre. But this second ap-
ointment it will be seen was several
lonths after the death of W, W. Ward and
as before the second appointment of the
Fite as Clerk and Master. On
le oath day of June, 1872, GOV. John G.
rown, issued his proclamation ordering
d election to fin the the vacancy occas-
ned by the death of Hon. w. W. Ward
At the biennial election of 1872, the Hon,
7. G. Crowley was elected Chancellor,
ID at the first term of the court held at | ,
arthage, in October, 1872, he appointed
10 contestant Gold Clerk and Master.
We deem It unnecessary to discuss the :
,ntest made by Cox, further thsn to an
)uuC6 JudI we w bOt GulhA Iuab ID CIodb6O |
rdcancy in the Office of Chancellor, and
erefore there was no constitutional war;
mt for the appointment of Goodpasture
,nding the contest. But to prevent an in
renee suggested BY argument Of coun- /
| in the case we announced dis |
lctly that we do not admit that {
y decree pronounced by Chancellor Good {
sture while holding under this appoint {
ent, was invalid. He was chancellor de- {
cto, and if parties chose to bring their t
uses to a hearing before him without in {
rposing the plea of cordm non JUDGE, then |
9 DEGREES he entered were binding upon ,
EN-. Nor do we think that the validity !
Goodpasture's first appointment rests
on the constitutional and legislative pro- I
lions for the appointment of special
Ices To hold court when the regular