American Decisions, State ex rel. vs. Link - Justice Cook.pdf · Rare Periodicals

American Decisions, State ex rel. vs. Link - Justice Cook.pdf

Media

Part of The Lawyers Journal

extracted text: the defendant's demurrer, which is as follows: "That in view of the foregoing and the allegations of the bill incorporating by reference the several private Acts of Tennessee in question, defondant has no right to maintain this suit and no right to i·estrain the defendant from performing his duties t1s County Chairman of Clay County, Tennessee." (4) The Chancellor erred in holding that chapter 53 of the Private Acts of 1943 is unconsi'itutional and void. (5) The Chancellor erred in holding that the office of County Judge of Clay County, Tennessee was abolished by Chapter 283 of Pdvate Acts of 1943, and that the defendant has no authority or right to act as Chairman of \.'he County Court of Clay County under the terms and provisions of said act. (6) The Chancellor erred in overruling the defendant's de· murrer and in O\'erru\ing and disallowing the dde11dant's motion to dissolve the writ of injunction. It appears from the record that Chap1.!ei· 53 of the Private Acts of 1948 was passed on January 20, 1943, and approved by the Governor on January 27, 1943; that the Re-Districting Act. Chapter 283 of the Private Acts of 1943, was passed on .February 8 1943 The latter act abolished all 1.'.he civil districts of Clay County·_ four in number - and set up and established eight civil districts in the country. The act named the justices of l'he peace and also the constables for each civil district. Now the only pOr· tion of this act which directly affects the relater in i'he discharge of his duties as county judge is Section 5 of the act, which named C. J. Mabry to serve as Chairman of the County Court until the next regular meei.~ing of the Quarterly County Court, his salary being fixed at $100.00 per month. The complainant does not attack the constitutionality of the aforesaid Re-Districting Act. It is in· sisted, however, thae the defendant Mabry has no legal authority to act as a Chairman of the County Court, "or in any way to in· terfere with him in the performance of his official duties as County Judge." It is the contention of counsel for dependant Mabry that! the Re-Districting Act repeals all laws and parts of laws in con~ flict therewith and abolishes the existing County Court of Clay County and establishes an entirely new County Comt of said coun· ty. Able counsel for the defendant have sought to make a distinc· tion between the instant case and other cases decided by this Court, particularly State v. Leonard, 86 Tenn. 485, 7 S.W. 453, Stat'e ex rel. v. Link, 172 Tenn. 258, 111 S.W. 2d 1024, and State ex rel. v. Lindsay, 103 Tenn. 625·636, 53 S.W. 950. Passing to the consideration of the question now before us, we act that created it. Eight days after the i·cpealing act was approved by the Governor the Re-Districting Aci! was passed in which defendant Mabry was named as "Chairman of the County Court." The duties of this office were identical with that of county judge under the act which sought to be repealed. The jurisdict'ion was the same in all respects. We think the case of State v. Link, 172 Tenn. 258, 262, 111 S.W. 2d 1024, 1025, is directly in point and controlling in the instant case. In that case the office of Couni'y Judge of Stewart County was abolished by the Private Acts of 1937, c. 643. In a bill brought to test the constil'utionality of the act it was alleged that it was a valid act and "it became the duty of the Quart!erly Court under the general statute to elect a chair· man of the County Court to succeed the defendant." This act was held to be invalid. The Court, speaking through Mr. Justice Cook, says: "Public office cannot thus be transferred by statute from one official to anol'her. Acklen v. Thompson, 122 Tenn. 43, 55, 126 S.W. 730, 135 Am. St. Rep. 851; State ex rel. v. Morris, 136 Tenn. 157, 161, 189 s.w. 67. "The Legislature cannot remove a county judge by abolishing the office and devolving the duties upon a chairman of the county court. State v. Leonard, 86 Tenn. 485, 7 S.W. 453. The distinction between statutes ineffective to i·emove a judge from office, and transferring its business to another, was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 S.W. 134, 1,46, 46 L.R.A. 567." Now it is clearly to he seen t'hat the only difference between the Link case and the instant case is that the Legislature abolished Link's office and left it to the Quarterly County Court to elect his successor under t'he general law, whereas, in the instant case, the Legislature abolished relator Bailey's office and in a separate act created eight civil districts in Clay County instead of the four old districts, named the justices of the peace and constables for said district's, and C. J. Mabry, who was to take over the duties of County Judge. We fail to see any distinction whatever that merits serious consideration. Adhering as we do to our former decisions, we hold that Chapter 53 of the Private Acts of 1943 is unconstit\ttional and void. The assignments of error are overruled and the decree of the Chan· cellor is affirmed. IV STATE EX REL. V. LINK Supreme Court of Tenn. Jan. 15, 1938 hold that the County Court is a constitul'ional court and cannot be abolished by legislative enactment. Prescott v. Duncan, 126 Tenn. l. 106, 126, 127, 148 S.W. 229. This Court has clearly made a dis· tinction between Chancellors, Circuit Judges, and County Jurlg{:s, holding that! in the interest of economy the two former may be abolished, but that the office of County Judge cannot be abolished during the term of the office. See the Judges' Cases, 102 ~Pnn . 111 s.w. 2d 1024 CONSTITIONAL LAW; ABOLITION OF COliRT OPEHATES TO VACATE OFFICE OF JUDGE. - The power to create the office of county judges or judge of other inferior courts was conferred on General Assembly by constitutional provision which authorized establishment of "inferior courts." Terms of all judges, including judges of inferior courts, are fixed by the Consl'itution at 8 years, and their tenure cannot be impaired except where Legislature finds it necessary to redistribute business of courts for purposes of economy and efficiency, and, when such rearrangement results in abolition of the tribunal, it operate's to vacate office of judge who presided over such tribunal. 509, 543, 545, 53 s.w. 134. In the Redistricting Cases, 111 Tenn. 234, 235, 80 S.\V. 750, the court used the following language : "The constitul!iona\ term of office, where there can be only one incumbent in a county, as in the case of the county register, the circuit court clerk, the sheriff and the county judge, cannot be 2. shortened, nor can the incumbent of such constil\ttional offices be deprived of his office, during his term, by the legislature. The sheriff can not be deprived of a substantial part of his powers and functions.'' AN ACT WHICH ABOLISHED TRE OFFICE OF JUDGE BUT DID NOT ABOLISH COURT OVER WHICH THE JUDGF. PRESIDED IS UNCONSTITUTIONAL.~ Where county judge for S~wart· county was elected and commissioned according to law, an act which abolished the office and repealed act which created it, but which did not abolish co.urt over which judge presided, was an unconstitutional exercise of legislative power. DE CJ SI ON We cannot close our eyes to the pal1Jable effort to legi!-:llltc t'he rehtor Bailey out of office and substitute in his r-l'lce and stead another person who is designated in another private act to perfonu the same official d'J\'ies. Chapter 53 of the Private Acts of 1943 purports to abolish the office of County Judge by t·epealing the COOK, Justice. 40'.? THE LAWYERS JOURNAL August 31, 1964 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
Date: 1954
Rights