American Decisions, In Re Opinion of the Justices.pdf

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extracted text: This appeal involves the validity of a private act of 1937, designed to abolish the office of count.'y judge in Stewart county. By ch=ipter 3, Private Acts of 1921, th~ office of county judge was created for Stewart county. In arldition to the ordinary duties of chairmnn of the county court, the act, section 6, subd. 3 as amended by chapter 454, Private Acts of l!J33. clothed the county judge with the authority and jurisdiction of a justice of the peace and with authorii'y to grant writs of habeas corpus, injunctions, and attachments. At the August election, 1934, the defendant, N. A. Link, was elected and subsequently commissioned county judge for the term of eight years and was exercising the powers and performing the dut'ies of the office when the Legislature passed chapter 643, Pri· vate Acts of 1937, under a caption which reads: "An Act to abolish the Office of County Judge of Stewart County, Tennessee, and to repeal Chapter Number Three of the Private Acts of \he General Assembly of Tennessee for 1921, passed January 12, 1921, and approved January 12, 1921, entitled 'An Act tb create the Office of County Judge of Stewart County, to iix his Salary and to define his Duties and Jurisdiction'." Section 1 under this caJltion declared the office abolished, nnd section 2, that the Act of 1921 was repealed. After passage of the act, the defendant refused to vacate \'he office. and the bill, in the nature of quo warranto, was filed to remove him. It was alleged in the bill that the act is constiL'utional and effective to remove the defendant from office, and that it be· came the duty of the quarterly court, under gt>neral st!atutes, to elect a chairman of the count~· C'OUrt to succeed the defendant. But, it is said in the bill that the justices of \'he peace of the county refused to eled a chairman by a vote of nineteen to two and that defendant continued to hold \.!he office and exercise the powers conferred by the Act of 1921. The prayer of the bill was for injunction to restrain defendant from acting as judge, and for a declaration that the Act of 1937 j9 valid. The chancellor . was of the opinion \'.hat the act is unconstitu· tional and dismissed the bill upon defendant's demurrer. Relators appealed and assigned errors, through which it is insisted that the act was a valid exercise of legislative power and that the defendant should be enjoined from acting as county judge. The rnlat'ors rely upon cases which sustain local legislation affecting counties in their governmental capacity, as in Haggard v. Gallien, 157 Tfmn. 269, 8 S.W. 2d. 364, and Rolland v. Parker, 159 Tenn. 306, 17 S.W. 2d 92G; and upon c:i ses which sustain acts which abolish state anJ county offices, as in State ex rel. \·. Morris, 136 Tenn., 1 57, 189 S.W. 67, anci Houf;c , .. C:r:>vt'lin~, 147 T('nn. 589, 2.iO S.W. 357. The principles underlying those cases are not applicable. The power to creat'(' the office of CQunty judge or judge of other in· forior courts was C ( nfe.rred upon the general assembly by article 6, section 1, of the Constil.ution, authorizing the establishment of in· ferior courts. County courts pr~sided over by a county judge are inferior courts within t'he meaning of t-he Constitution. State v. Maloney, 92 Tenn. 62, 20 S.W. 419; Scott v. Nashville Bridge Co., 143 Tenn. 86 122, 223 S.W. 844 ; Whitchc:.id v. Clark, ]41; Ti!nn. 660, 670, 244. s.w. 479. Terms of all judges, including judges of inferior courts, arc fixed by the Constitution, article 6, sec. 4, at eight years, and their tenure cannot be impaired except where the Legislature may find it' necessary to redistribute the business of the courts for purposes of economy and efficiency. When in such instances the rearrange-ment results in the abolition of the tribunal, it operates to vacate the office of the judge who presided over the abolished tribunal. The county court of Siewart county, over which the defendant presided as county judge, was not abolished, but the act if given effect would remove the judge from office, deprive him of its emolu. ments, leave the court in existence, and transfer its jurisdict'ion tf) u ('hairmun of t.he county court tu be elected from year to yeal' under Code, sec. 10202. That is to say, the office would be transferred from the county judge to a chairman of the county court, another county judge unde1· a different name. Code, secs. 763, 10202 ct seq.; Johnson v. Brice, 112 Tenn. 59, 68, 83 S.W. 791; Malone v. Williams, 118 Tenn. 390, 479 103 S.W. 798, 121 Am. St. Rep. 1002 ; Murray v. State, 115 Tenn. 303, 89 S.W. 101, 5 A:n. Cas. 687; St'ate ex rel. v. Howard, 139 Tenn. 73, 77, 201 S.W. 139. Public office cannot thus be transferred by statute from one office to another. Acklen v. Thompson, 122 Tenn. 43, 55, 126 S. W. 130, 135 Am. St. Rep. 851; State ex rel. v. Morris, 136 Tenn. 157, 161, 189 s.w. 67. The Legislature cannot l·emove a county judge by abolishing the office and devolving the duties upon a chairman of \'he county courts. State v. Leonard, 86 Tenn. 485, 7 S.W. 453. The distinction between statutes ineffective to remove a judge from office, and sta· tutes that accomplish removal by abolishing t~e tribunal and transferring its business to another, was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 $.W. 134, 146, 46 L.R.A. 567. After referl'ing to the opinion in State \'. Leonard, supra, and quoting from it, the opinion prnceeds: "The Leonard Cai>e applies only to a county judge, where only one can exisC in a count:,<, and where his functions and duties can· not be devolved upon another, and is different from cases involving circuit, chancery, or other judicial officers, who preside over a system of courts common to the whole state. ln the former class of cases the jurisdiction and business of the abolished court must necessarily go to a judge created especially by t'he legislature to receive them. In the latter class judges are judges for the state at large, and the transfer is not of jurisdiction but of business, not to a judge specially created, but t'o a judge already elected by the people, and clothed with authority and jurisdiction to act.'' The decree of the chancellor is without error. AFFIRMED. v IN RE OPINION OF THE JUSTICES Supreme Judicial Court of Massachusetts, April 15, 1930 (271 Mass. 575, 171 N.E. 237> CONSTITUTIONAL LAW; TENURE OF OFFICE DURING GOOD BEHAVIOR. - The tenure of office during good behavior imports not only !'he length of term but also the exi'ent of service. When a constitution has made definite provision covering a particular subject, that provision is exclusive and final. It must be accepted um. '<l.uivocally. It can neit'her be abridged nor increased b)' any or all of the depntments of the government. OP I NION As a 1iart of t.his comprehensive grant of power the General Court may, according to its conceptions of the requirements of i'he general welfare, regulate and limit and change and transfer from one to another the civil and criminal jurisdiction of those courts. It may abolish existing courts, except i'he Supreme Judicial Court, and erect others in their place and in its wisdom distribute among them jurisdiction of all justiciable matters subordinate to the one court established by the Constitution. It may settle and increase or diminish the salaries of the judges of courts so erected. The amplitude of this legislative control over such courts, however, is bounded by other provif'lions of the Constitution. Commonwealth v. Leach, 246 Mass 464, 470-471, 141 N.E. 801, 317, 128 N.E. 429; Opinion of the Justices, 8 Cush. 584. Commonwealth v. Hawkes, 123 Mass. 525, 528-529. This granC of power to the General Court to erect and constitute courts, broad as it is: does not include the tenure of the judges of such courts. That is fixed by the Consti. tution itself. It is provided by pare 2, c. 3, art. 1 of the Constitu· tion that "all judicial officers, duly appointed, commissioned and August 31, 1954 THE LAWYERS JOURNAL SUPREME COURT DECICIONS Ri:uil Surety 4t lniiurancc Co., Plab1Uff-Appellee, vs. Marciano de fa Paz, et al., Defendanfa-Apµella11t.<; and Appellees. lllarciano de lrz P•1z 1.rnd D<Jminuo /,eon<•r, Defet;d1mts-Avpellm1ti;, G. R. No. L-6463, May 26, 1954, Paras, C.J. .:i. ID.; lD.; IO.; PUBLIC INSTRUMENT; DA1'E IN BODY IS DATE OF ACKNOWLEDGMENT BY REFERENCE. - Where an instrume1~t is dated in the body, and said date is referred to in the notarial acknowledgment, the. dat'e of the latter is deemed to be the date appearing in the body of the instrument. 1. ORLIGATIONS AND CONTP.ACTS; PREFERENCE OF CREDITS; INSOLVENCY. - Wh~rc thf' debtor is msolvcnt, article lL Hl24 of thf' old Civil Code is not applicable, since it iF. considered repealed insofar as it referred to cases of bankruptcy ID.; ID.; ID.; CREDIT EVIDENCED BY PUBLIC INSTRUMENT NEED NOT BE REDUCED TO JUDGMENT. - A credi~ evidenced by a pub\.ic instrument, though not reduced to a judgment, is entitled to priority, because article 1924 of the Civil Code distinguishes credits evidenced by a final judgment. and estates of deceased persons. 2. ID.; ID.; LAW ON ATTACHMENT AND LAW ON PREFERENCE OF CREDITS APPLIED TOGETHER. - The law on attachment and the law on preference 'lf credits under 7 · article 1924 o{ the Civil Code had heretofore berm applied· hand ID.; ID.; ID.: ID.: PREFERENCE UNDER PUBLIC INSTRUMENT NOT LOST BY REDUCTION THEREOF INTO JUDGMENT. - The preference under :i public instrument is not los\' by the mere fact that the credit ,is made the subject of a subsequent judicial action and judgment. in hand. 3. ID.; ID.; ID.; AMUSEMENT 'fAXES, SUPERIOR LIEN.The claim of t'he Colleetor of Jnternal Revenue for amusement taxes on the theater insured, constitutes a lien sure.riot to all 8 · C1ther charges or liens, not only on the theater itself but: also upon all property rights therein, including the insurance proceeds. ID.; ID.; ID.; FINAL JUDGMENT; ABSENCE OF STAY OF EXECUTION. - A judgment upon which execution has not been staytd under the provisirms of section 14 of Act 190, is enlit'led to the preference prc.vided for in article lfl24 of the Ci\'il r.ode. 4. ID.; ID.; ORDER OF PREFERENC~ UNDER Al~TICLE 1924 OF CIVIL CODE. - The order of preference under ar- fl. tide 1924, 1mragraph 3, of the Civil Code, is, first, in favor ID.; ID.; ID.; PHEFERENCE DUE TO NOTICE OF ATTACHMEN'l' OR GARNISHMENT. - A credit ma.de the subject of notice of attnchm.ent or garnishment is entit!('d t9 preferenee as of the dat'e of said notice, subjeet only to the priority of rredits provided for by article 1924 of the old Civil Code. of credits evidenced by a puhlic inst:rument and, secondly, in favor of credits evidenced by a final judgmen~, should they have been the subject of litigatil•U, the preference among the two kinds of credits being determined by priority of dat'es, sworn, shall hold th~ir offices during good behavior, excepting such concerning whom there is different provision made in this constitution: provided nevertheless, the governor, with consent: of the council, may remove them upon the address of both houses of the legislature; ··and [according to Amendment 58 1·atified and adopted No\'ember 5, 1918) provided also that the governor, with the consent: of the council, may afte1· due notice and hei-.rini; retire them because of advanced age or mental or physical disability. Such retirement shall be subject to any provisions made by law as to pensions or allowances 1iayable to such officers upon their vohmtary retirement." The exception mentioned relates to justices of the peace and has no bearing unon the present question. The tenul'e of office of judges as thus settled by the Constitution is imperative and final. It ·cannot be enlarged, limited, modified, altered or in any way affected by the General Court. In conformity iO this provision of the Constitution the commissions of judges of the courts named in the prnposed bill state in substa11ce that the appointee is to hold said trust during his good behavior therein unless sooner removed therefrom in the manner prnvide1l in the Constit'ulion. The provision as to the tenure of all judges of the United States, both of the SUJ!l"eme and of the inferior cou1·ts, in art. 3, sec. 1 of the Constitution of the Unil:ed States, is in the same words as those in e. 3, art. I of the Constitution of this Commonwealth, viz., that they "shall hold their offices during good behaviOl'." Respecting such inferior courts of t'he United States, it was said in Ex parte Bakelite Corp., 276 U.S. 438 at page 44!:1 S. Ct. 411, 412, 73 L. Ed. 789: "They * * * have judges who hold office during good behavior, with no power in Congress to prnvide otherwise." The inevitable effect of the part of sec. 4 of the proposed bill touchin~ compulsory retirement of cert'ain judges is to make something else than good behavior an element in judicial service. It is no e\'idence whatever of evil behavior or of want of good bchaviol' to pass the ag·e of tlu·ee scores and t€n. Age and good behavior are ·,Jnrd.::.ted subjects. Ther€ is no connection between the two. And yet, under the proposed bill the compulsion of Ju.df-time service &r.d half-time pay for judges of the designated courts arises when the age of seventy comes, regardless-of e\·ery other circumstance or cons>der;ttion. 'l'cnurc of office during good behavior imports not only the length of the term but also the extent: of service. The Constitution in this particular means that judges "shall hold their offices during good behavior," not that they shall hold half of their offices after a ce1·tain age and such other fractional part as some ot~1er person may determine. The Constitution itself, in the words already quoted, makes two provisions to i·elieve the judicial service of judges no ionger competent to render efficic-nt service. It contains a specifi(; clause in art. 58 of the Amendments affording the means of retiring a judge "because of advanced age or mental or physical disability." The proposed bill adds another and diverse method to the same end. It would deprive such judge against his will of the right to render full-time service for full-time pay That is beyond the pO\\'er of the legislative depai'lmt'llt of government. When the Constitution has made definite provision ~overing a particular subject, t'hat pre.vision i!": exclusive and final. It must be accepted unec:uivoca]. J~'· It can neither be abridged nor be inc1·eased by any or all of the d<.!Jlartl'H'nts :-if go,•e1nment. It is our opinion th:.1t the provisions of the bill concerning permissive retirement of t'he judges of the serveral courts are not in conflict with the Constitution, but that · all its provisions for compulsory retirement and for compulsory or voluntary retirement of the chief or presiding judges are in conflict wil'h part 2, c. 3, art. I, as amended by a1·t. 58 of the Amendment~ of the Con!>titution. 4114 THE LAWYERS JOURNAL August ;H, !!Hi-I
Date: 1954
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