Year: 1866

1 pO1 SUuAOINA DONA'AOhS


JOHN IT. NAREMOREus Us HTRAMK K. HEDGE
4 GOTH.


CONTESTED ELECTION.


1t is wisely provided by our State constitution,
that "should vacancy occur in the Office of Cir
cult Court Clerk, it shall be filled by the qualified
voters at the first election for any of the county Of
| hcers."


In obedience to this constitutional provision the
contestants became candidates. to be voted for on
the Sd day of March, 1866, at the election for coun-
W officers. And, the presumption is, that each of
the aspirants sought only the votes of those who
were qualified to exercise the right of suffrage
| under the constitution and laws of Tennessee.
However the State constitution adopted in 1884,
foreshadowed the doctrine that laws might be enact
ed excluding from the right of suffrage" those who
by the commission of public Offences were consid-
cred incapable of proper exercise of this high pre-
rogative. And the Legislature had provided by


law that persons convicted of certain crimes should
not exercise this right-should not vote This has
been the theory Of our State government from its
organization. And, after the occupation of Tennes
see by the national troops, and an effort made to re-
store civil government, which had been overthrown
by the rebellion, and to place Tennessee in harmony
with the United States authorities and government
it regarded unsafe to trust those with the ballot
who had SO recently resorted to arms, and other
MEANS to destroy that which it was intended to re-
establish.
4
been appointed by the President an agent to aid
| in securing republican form of government to the
people of Tennessee excluded certain persons from
the polls, by executive proclamation.


| This was the exercise of questionable power, and
when the contingency which necessitated its exer-
else had passed away the Legislature fully clothed
with the constitutional power and impressed with
the Importance of providing that traitors and those
who had abandoned the government in its hour of
trial. should participate in the selection of rulers
proceeded to guard the future by the enactment of
the law known the act to limit the elective fran
chise," passed June the 5th, 1865.


| The sovereign people of the State desiring to
place the political power of Tennessee in the hands
of the loyal had previously, the 22d day of Feb
1866 expressly referred the qualification of voters
and the limitation Of the elective franchise" to the
very BODY who enacted this law by the 9th section
| of the schedule, adopted with the amendments to
the constitution The 9Th section of the act refer
red to- says "That it shall be the duty of the County
Court Clerk, in each county, to open and keep reg
istration of voters, and before whom proof, under
OATH that the voter falls within the provisions Of
article l of this act shall be made; ProuideG No
man of publicly known Union sentiments shall be
required to make oath in doing the same; and also
said Clerk shall issue to all such persons certificate
of registration and no one shall be permitted by the
Judges of election to vote, unless registered"
With this law in full force the county election was
held, at which Hsagecoth and Naremore were voted
/
of Cumberland county. Hedgecoth received ma
jority of two of the votes poled in the county at
said election which prj1G fGciG entitled him to be
inducted into the Office But, before the period at
which the law requires the Clerk elect to execute
bonds and qualify and soon after the election, Mare
more gave Hedgecoth both verbal and written no
tice that he (Naremore) would contest his Hedge
coths) election. And, upon Hedgecoth's application
to be inducted into said Office, Naremore, by Attor
ney, moved the Court to be permitted to show
why Hedgecoth should not be inducted as Clerk of
this Court and that he (Naremore) received ma
ority of the legal votes polled at said election and
therefore legally and consttutionally elected and
entitled to be inducted into said Office Thus the al
legations were made and the Court desiring to at
tain justice and administer the law has tolerated the


fullest range OF testimony that the whole case might
be developed. Several questions have been raised
and insisted upon by counsel, and the Court ven
lures to remark that Of the positions assumed
are unprecedented in the annals Of American juris-
prudence.


The idea of insisting that the election is altogether
void, in the event the party holding the certificate
is not elected not to be founded in the philos
ophy of good law.


That even an overwhelming majority of the votes
polled at said election illegal, and cannot be
recorded, the Court is fully convinced but that,
therefore, the whole proceeding illegal and the
election void is conclusion at which the Court has
been unable to arrive.


We nave se6u LLhJ Int law VI june Lno OH, lOOO,
expressly and explicitly declares, that it shall be
the duty of the County Court Clerk, in each county,
TO open and keep registration of votes and that
the CLARK shall issue to all such persons" are
declared voters under the provisions of that act,
certificates of registration and shall be per-
mitted by the Judges Of election to vote unless so
registered"


The question then is, did the "Clerk open and
keep registration of votes and was there cleo
ton opened and held according to this requirement
of the Legislature The question is also made and
insisted upon with some plausbity not to say force
that the Sheriff having himself become a candidate
after advertising said election and selecting persons
to open the polls and hold SAID election in the var
Gus civil districts Of the county, did by operation of
law vitate and render illegal the whole proceeding
This would be question of more moment and COM
mand greater consideration, was the Sheriff one of
the contesting parties but the Court has been unable
to conclude that this, even if well founded and
strictly true could effect the rights of third parties,
neither by law or otherwise disqualified from being
candidates and acquiring rights under said election
But It clearly appears from the proof offered upon
the part OF Hedgecoth, that the County Court obvi
sted this objection even though if were founded in
the imperative principles of law, and the counsel
who introduce this evidence have assurances that


the County Court leaped the bounds of their author
ity when they appointed persons to conduct said
election Section $780, of the code provides that when
the Sheriff ais candidate the Coroner, or if there
be no Coroner some person appointed by the Coun-
y Court shall hold all popular elections; and said
officer or person shall appoint sufficient number of
deputies to hold said elections Then Sections S42
and S4S, provide that any three free-holders may
perform the duties prescribed by the preceding
tons or in of necessity may act as officers
inspectors Now, admitting that the County Court,


instead of appointing one single person. who in turn
would have to select these deputies, appointed not
only three Judges Inspectors of election for each
voting place, but also the deputy to hold the cleo
tion does it not follow that the law was complied
with in spirit and interest," and every way lawful by
operation of the general not to say universal prn-
ciple that the principal can do everything and
more than the agent? The person to be appointed
by the Comfy Court is simply sn agent to perform
q certain duty, and most unquestionably the Court
in the exercise of its power, dispense with tht
agent and perform the specific duty itself. And i
the County Court had taken action in the mattel
at ALL "any three free-holders were authorized BY
law to provide for and open the polls. Taking the