Year: 1879

clusion that 3930d Of the Code was
neither thought of nor pursued in that
election. The fact can be made to
appear that all the attorneys in Mem
phis at the time were notified TO be
present at the election; that the object
of said election was stated to them;
that only eleven were there; and that
all were in favor Of such election. /
am satisfied that under section 393Od
Of the code Galloway could claim his


election. What does that section


mean? That all the members of the


bar must be present to render the


election valid2 That could never be.


1t might be practicable in small towns,


but never in places like Nashville and


Memphis, where there are so many


lawyers. There are one hundred and


fifty lawyers in Memphis, and 1 feel


confident that, though attending diff


ferent elections Of this character, |


never saw twenty-five attorneys pres


ent. | think what is meant by "ma-
jority" is settled in | Sneed. 1t is the


case of the Louisville and Nashville


railroad VS.. -. There a citizen of


Davidson county resisted the payment


Of his proportion of tax voted by that


county on the ground that major
ity' OF the voters of Davidson county
did not vote in that election.


The court held IN that case that
majority meant in the act the
majority" of those who chose
to vote, and it was beyond
the power Of any one to compel
men to vote. So here under 3930d the
lawyers are to be notified; they are to
be informed as to what is proposed to
be done. But suppose they stay away
and fail to exercise their rights, does
that render the action Of the other
attorneys null and void? To my mind
this matter is perfectly plain Wheth-
er they could be compelled to try
their causes is another question. But
it is said that if Galloway was legally
elected, still he had no power to grant
a fiat in this cause. The second
sub section of 3930a says The per-
son so elected shall, during the period
that he acts, have all the powers, and
be liable to all the responsibilities of
a regular judge" The idea in the
mind of the judge who wrote the
opinion in 3 Heiskell, was that this
language, or that the act of election.
was to place the special judge, so
appointed by the members of the bar,
in the place Of the regular Judge; that,
in effect, he was not a new officer but
that he sat there as a perfect substi-


tute for the regular Judge; and that is
my idea also. 1t is said that this sub
section means that he has only the
powers of the regular judge as to the
particular cause or causes that he may
try. The legislature could have easily
used words to have conveyed that pre-
else meaning, but it failed to do so.
And if the language used means any
thing it means what | have stated as
my opinion, and think that is what
Judge Freeman meant when writing
the opinion referred to. 1t is a rule
of law that all words are to be taken
in their plainest and most natural
sense. But some light is thrown on
this subject by section 1869 of the
code. The caption Of the sections,
1856, 1867, 3I6S and 1869 is Of " in
junction, appointment of receivers
and other extraordinary process" 1863
thus reads; In all proper cases, also
any of the courts may use all other
extraordinary process Of the court of
chancery, and in the same way as that
court, when necessary to effect the
ends of justice" The question here
naturally recnrs what is a court? II
my learned friend Judge Wright, will
pardon me, | will ask him the ques-
tiOn-if a special judge be legally
elected or appointed, and he have
clerk or sheriff, does that make a
court? (Judge Wright was under
stood to say perhaps it would if he
were a legal special judge, and so
sometimes a jury might not be amiss).


Judge E.-Address me. A colo
guy is not proper.


Counsel-I protest that my question
is right and proper and that | have
right to ask it.


Very well; that is all want. IF Gal
loway was, as | contend, a legal Judge
then because he had both a sheriff
and clerk that made him a court.
and he could beyond doubt issue this
fiat. What harm could ensue if he
did issue it? If wrong, the injunc.,
tion that would follow could be set
aside upon proper steps being taken.
l maintain that this view of the mat
ter is in perfect accord with all our
legislation on the subject Of special
Judges and extraordinary process
Thirty years ago or thereabout none
but chancellors could grant fats. Lit
lgation increased, and the necessity |
for injunctions and attachments be- |
came SO great, and especially as it often |
happened that a chancellor was away |
my hiAAOo Muou Mdubtu, litb Iue |
legislature was persuaded to grant the |
power of issuing fats for iniunctions
and attachments to circuit Judges.
But that was not enough. A circuit
Judge might be on the circuit and |
finally it was provided, as measure of
and to effect the ends of
Justice, that the different criminal. and
lfterward all, judges of special courts
we're allowed to grant these fats.
Now the law even permits the clerk of
that court where the chancellor sits
in Judgment to issue an attachment
On an equality as to that particular
thing with the chancellor himself.
Indeed times have changed in the
interest of justice, Every lawyer will
admit that the issuance Of an attach
nent is extraordinary process and
involves as much prerogative in the
issuance as that OF an injunction. Is