TBA Law Blog

Posted by: Donald Paine on Sep 7, 2011

Journal Issue Date: Sep 2011

Journal Name: September 2011 - Vol. 47, No. 9

Answer this question on procedure and constitutional law: Can a citizen simultaneously serve on the Tennessee Supreme Court and in the United States Congress? Because this is an open book exam, you may consult Tenn. Const. art. VI §7 and Tenn. Code Ann. §8-18-101(7).

Our current Constitution repeats the language of the 1834 version verbatim: “The Judges of the Supreme Court … shall not … hold any other office of trust or profit under … the United States.” The Code likewise disqualifies from state office members of Congress. So the answer to my question is “no.”

Former State Rep. Ray Hill writes a political history column in a weekly newspaper, The Knoxville Focus. He recently wrote: “Congressman Maynard was appointed to the Tennessee State Supreme Court.” Well who was Maynard?

Horace Maynard was a transplanted Yankee. Born at Westborough, Massachusetts, in 1814, he graduated from Amherst College. He came to Knoxville around 1839 and eventually taught mathematics at East Tennessee University (later to be the University of Tennessee). Admitted to the bar in 1844, he became a busy lawyer. The name “Maynard” is listed as counsel for both civil and criminal appeals in Volumes 25 through 40 of the Tennessee Reports.

Fast forward to September 1868. Horace Maynard was seated in the U.S. House of Representatives. His political pal William “Parson” Brownlow occupied the governor’s chair in Nashville. Judge Samuel Milligan resigned from the Supreme Court on Sept. 1. Gov. Brownlow appointed Congressman Maynard to replace Milligan. Maynard accepted, but he refused to resign from Congress.

On Sept. 18 “Judge” Maynard granted an appeal (writ of error and supersedeas) from the trial judgment in Thomas H. Calloway v. V.H. Sturm. A motion to dismiss the grant relied upon the Constitution and Code prohibitions on a citizen wearing two sovereign hats.

Chief Justice Nicholson tried to unravel the legal dilemma in Calloway v. Sturm, 48 Tenn. 764 (1870). First, Maynard’s acceptance of the appointment was an implied resignation from Congress. His continuing service in Washington was “a matter entirely for the adjudication of Congress.” Second, even though Brownlow had no power to appoint a replacement for the entire unexpired term of Milligan (but only a temporary appointment until an election), Maynard’s act of granting an appeal was not void. Maynard was “a Supreme Court Judge de facto, and his competency as such could not be inquired into by the parties affected by his acts.” Consequently the court held that Maynard’s grant of the appeal would not be dismissed on motion.

Apparently this was the only judicial act attempted by Maynard. He continued serving in Congress through 1874. Then he became minister to the Ottoman Empire (Turkey). After that he was U.S. Postmaster General until 1881, when he retired to Knoxville.

Horace Maynard’s wife was Laura Ann Washburn. They had seven children. The Union County seat, Maynardville, bears his name because he won the lawsuit that achieved county formation. Horace Maynard died on May 3, 1882 (age 67). He is buried at Old Gray Cemetery.

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.