Calloway v. Sturm
| Citation | 48 Tenn. 764 |
| Parties | Thomas H. Calloway, in error, v. V. H. Sturm. |
| Decision Date | 30 September 1870 |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
Motion to dismiss writs of error.
L. A. GRATZ, for the motion.
GEO. BROWN, against it.
This is a motion to dismiss a writ of error and supersedeas granted by Horace Maynard, Judge, on the 18th of September, 1868. The motion is based upon the allegation that Mr. Maynard had no authority as a Judge of the Supreme Court, to grant the writ. It is said that he was a member of Congress at the time of his appointment by Gov. Brownlow, as a Supreme Judge, to fill out the unexpired term of Judge Milligan, who resigned the position; and that being a member of Congress, he was ineligible to the office of Supreme Judge; and for that reason his appointment was illegal and void. Assuming that we can judically know that Mr. Maynard was a member of Congress at the time of his appointment as a Supreme Judge, it does not follow, that his appointment, for that reason was illegal and void. It is true, as argued, that, by the Constitution of Tennessee, Art. 6, s. 7, and the Code, 748, a member of Congress is disqualified for office under the State Government, and is guilty of a misdemeanor in holding any such office, but it does not follow, that, because Mr. Maynard, whilst a member of Congress, accepted a commission, and qualified as a Supreme Judge, his acceptance of that office was a nullity. The consequence was, if Gov. Brownlow had the authority to appoint him, that he thereby surrendered his right to a seat in Congress. It is settled, that, on the acceptance and qualification of a person to a second office, incompatible with the one he is then holding, the first office is ipso facto, vacated. It operates as an implied resignation--an absolute determination of the original office. People v. Carrique, 2 Hill, 93; Rex v. Trelleny, 3 Bur., 1616; Millward v. Thatcher, 2 T. R., 87; 13 Petersdorff's Abr., 3.
It follows, that when Mr. Maynard was appointed as a Supreme Judge, he vacated his office as a member of Congress and became a Judge of the Supreme Court, provided Gov. Brownlow had any authority to make the appointment; nor does the fact that Mr. Maynard continued to serve out his time as a member of Congress, affect the question before us. That was a matter entirely for the adjudication of Congress.
This brings us to the investigation of the legality of Mr. Maynard??'s appointment as a Judge. The election of all officers and the filling of all vacancies that might happen by death, resignation, or removal, not otherwise directed and provided for by the Constitution of 1835, was directed therein to be made in such manner as the Legislature might provide. Art. 7, sec. 4. By section 312 of the Code, it was provided, that whenever a vacancy occurs in the office of Supreme Judge, it is made the duty of the Governor to order an election, by issuing proper writs of election; and by section 315 it was provided, that, in the meantime, the Governor should appoint a suitable person to fill the office until the election of a successor; and by section 313, two months' notice of the election was required to...
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State ex rel. v. Shumate
...cases the court was dealing with the title of the claimant to the second office, a title upon which the court was empowered to pass. In Calloway v. Sturm, the court careful to note that the continued service in the national House of Representatives, after accepting an appointment to this co......
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Smith v. Landsden
...Tennessee cases not cited in the original opinion at point on the issue here presented are: Blackburn v. State, 40 Tenn. 690; Calloway v. Sturm, 48 Tenn. 764; Ridout v. State, The cases cited by Appellants in their brief concern collateral attacks upon judgments. The case at bar does not pr......
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