62 Tenn. 262 | Tenn. | 1873
delivered the opinion of the Court.
The facts of this cause, as they appear from the original and amended petitions for writs of error and supersedeas, are, in substance, as follows:
That the election in question, in regard to the removal of the county seat of Grundy county, was held under the Act of 1873, Ch. 103; that the County Court of said county, at its July Session, 1873, ordered said election to he held on the 20th day of September,' 1873; that the Sheriff of said county did advertise and hold said election in said county, in all the civil districts then embraced, excepting the Eighth Civil District; that. by- fraud or wilful neglect of the Sheriff or his Deputy,- there was a failure to open and hold said election, at the voting places in said Eighth
“ October Term, Grundy County Court, Monday, October 6th, 1873. This day the returns of the recent election, on the removal of the county seat of Grundy county, were returned to the Chairman of this Court, and it was declared by the Chairman, that the vote of 'no removal’ was in the majority by two votes, as counted. Thereupon, the Chairman of the Court, John C. Lockhart, after having announced the result of said election to the Court, ordered the Sheriff to make proclamation, at the Court-house door, that the result of said election was in favor of 'no removal’ by a majority of two votes, which was immediately proclaimed, as ordered, by the sheriff.”
It is further alleged, that the facts occurred as set forth in said exhibit; that thereafter said County Court was induced to, and did purge the polls, and look into the votes, and examined witnesses in open Court to prove that votes had been given for "Altamont” instead of “no removal;” that said Court rejected the votes cast, aforesaid, and then made the result of the
“ Tuesday morning, October 7, 1873. On recasting the vote and hearing the proof, the Court is satisfied there were 448. legal votes cast for Tracy City, in the late election, at which the question of removing the county seat was submitted to the people, and there were 222 votes against removal. Thereupon the Court is satisfied that more than two-thirds of all the votes cast were for removal; and the court seeing also that more than two-thirds of the votes in the county, making the Governor’s election the test, were cast for removal, and therefore the count in accordance with the voice of the people, by a two-thirds vote, order, adjudges and decrees that the county seat is removed from Altamont to Tracy City, and the Clerk of this Court will proceed to remove the books and papers pertaining to this Court, and he wall remove them to Tracy City.”
It appears that this last order was made by a vote of eleven Justices, in the affirmative, to one in the negative. It is further averred that parol proof was introduced, upon the investigation of the vote; that before the proof was heard, J. M. Bouldin, as attorney for citizens of said county, appeared in Court, and objected to the introduction of said proof, “from the fact that the vote had been counted, and the result
It is further alleged, that Grundy county Avas formed and organized in the year 1844; that Sequatchie county was formed and organized in the year 1858 ; and that by an Act of the Legislature, passed in 1858, a portion of the territory of Grundy county was deducted,
These are all the statements of the original and amended petitions, that need be set forth. The original petition was sworn to by J. M. Bouldin, and the fiat of his Honor, Jo. C. Guild, Judge of the Law Court at Nashville, obtained thereon, on the 13th day of October, 1873, ordering the issuance of said writs as prayed for, upon the execution of bond in the penalty of one thousand dollars, conditioned to pay costs and damages.
The petition was filed in the office of the Clerk of said Circuit Court, on the 15th of October, 1873, and the bond was thereupon executed, and said writs were issued and served.
At the January Term,- 1874, of the Circuit Court, of Grundy county, Tennessee, after leave had been obtained to file the amended petition aforesaid, and the same had been filed, the defendants moved the Court to dismiss the original and amended petition. Upon consideration and argument of said motion to dismiss, his Honor, W. P. Hickerson, Judge of said Circuit Court, presiding, the same was allowed, and said petition dismissed. Erom this judgment petitioners have appealed to this Court.
1. Upon the facts presented, as aforesaid, in the
“ Be it further enacted. That the Sheriff shall make his returns to the Judge or Chairman of the County Court, and at its next quarterly session after the election, the votes cast shall be counted and the result declared, and if the proposition to remove the county seat receive the requisite number of votes, then the County Court shall proceed to make all necessary provisions for removal.”
The Constitution, Article 6, §10, provides: “The Judges or Justices of Inferior Courts of Law or Equity shall have power in civil cases, to issue writs of certiorari, to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction, into such Court of Law, on sufficient cause, supported by oath or affirmation.
The Code, §3123, is: “ The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the Court, there is no other plain, speedy or adequate remedy.” See, also, §3126.
The power of the Legislature, under the Constitution, to regulate the remedy by writ of certiorari, so as not to abridge the rights of the citizen, cannot be
To sum up, under the Constitution and the Law, before the writs of certiorari can be invoked or awarded, there must be a “ cause,” the inferior jurisdiction, whether a tribunal, board, or officer must have exercised judicial functions; and sufficient cause must be shown for the removal. And , under §3123, of the Code, other facts must exist to authorize the remedy in question. The inferior tribunal must have exercised its jurisdiction, or must be acting illegally, and further, in the judgment of the Court, or officer granting the writ, it must appear “there is no other plain, speedy or adequate remedy.”
These observations are confined specially and ex
In Durham v. The United States, 4 Hay., (Cooper’s Ed.) 54, 69, it was held, the proceedings of a court-martial commenced under the laws of the State, although the 'fine be claimed by the United States, may be reviewed in the Circuit Court upon certiorari. This was a .case in which a fine was assessed against Durham by a court-martial for Blount county, for delinquency in not appearing when drafted. This proceeding of the court-martial was clearly judicial in -its character. The case of Dodd v. Weaver, 2 Sneed, 670, was a contest as to the right in, and title to, the office of constable. The Court in that case, say: jurisdiction to try contested elections for Justice of the Peace and constables, is conferred on the County Court by the Act of 1852, Ch. 54, and it is made the duty of the Court to hear • proof and decide the case upon evidence. The return of the Sheriff is not conclusive, but merely prima facie evidence of the right to the office; and the function of the County Court is not ministerial but judicial, as it relates to a matter in litigation. See, also, authorities therein cited. The board of commissioners appointed under the law, • to set apart a homestead to the head of a family, exercised judicial functions, and their action, if illegal, may be superseded in a proceeding for writ of certiorari. Wilson v. Lowe, 7 Cold., 153. In the case of the United States v. Ferreira, 13 Howard, 40, the Supreme Court
In the case of the County Court of Obion v. Marr, 8 Hum., 634, the county ordered the levy of a tax for the purpose of building a new jail. Judge Tur-ley, in delivering the opinion of the Court in that case, says: “ The assessment is not a decree or decision of the County Court, from which an appeal is given by the Acts of 1844, Ch. 99, but is a municipal provision made for the' regulation of the fiscal affairs of the county, and from which no appeal is given. If the assessment be made by the Justices, without, or in violation of authority, it is a void act, and the collector would not be protected by it in levying the taxes, and would be liable to an action for so doing.” An appeal from the County Court therein was dismissed by this Court. The case of Covey v. The Justices of Campbell County, 5 Sneed, 513, is this: “The plaintiff, a citizen of Campbell county, prayed an appeal from the order of the County Court, of said county, for the building of a Court-house. The appeal
In Wade v. Murry, 2 Sneed, 50, it was held by the Court, under the Act of 1854, Ch. 32, that a special tribunal was created for the trial of contested elections of Judges and Attorneys-General, of which the person holding the office of Chancellor for the division in which the contest may arise, is constituted the Judge. The decision of this tribunal is final and conclusive upon the parties, from which no appeal
The Quarterly County Court, under this Act, have certain well-defined duties to perform. The Sheriff, the returning officers in the various civil districts of the county, the Judges and the Clerks of the election, are all presumed, in the absence of proof to the contrary, to have done their respective duties in the manner prescribed by law. All the returns of the election are to be produced to the Court. Thereon, the Court proceeds to count the number of votes for removal, as appears from the returns themselves, and also, the number of votes for no removal. This is simply a
2. It is insisted by the counsel of . petitioners, that the Act of 1873, Ch. 103, is unconstitutional. The sixth section thereof is in these words:
Be it further enacted, That the county seat shall not be removed to any place unless a vote is cast for the removal to said place equal to two-thirds of the votes cast in the next preceding Governor’s election. A part of Section 4, Article 10, of the Constitution of 1870, is thus: “No part of a county shall be taken off to form a new county, or a part thereof, without the consent of two-thirds of the .qualified voters in such part taken off, and when an old county is
Our first inquiry on this point, is, what do the terms concurrence of two-thirds of the qualified voters of the county mean ? In the case of Cocke v. Gooch, MS., opinion, delivered at Jackson, in 1871, the first clause of the Constitution above copied, came before this Court for construction. That clause is: “ No part of a county shall be taken off to form a new county, or a part thereof, without the consent of two-thirds of the qualified voters, in such part taken off.” The Court say, the word “ consent,” here means the active concurrence, and cannot be substituted for by a passive acquiescence. Instead of presuming that those who did not vote in the election, meant by their non-action to submit to the result of a count of the votes cast, we hold, that a proper reading of the Constitution and enabling Act, authorizes those who did not vote to conclude that their votes against the project could avail nothing, as a fixed affirmative numerical strength was absolutely necessary to the success of the new county.” Such is the law. This construction of said clause is strengthened by a citation in said opinion, of the different reading of a part of Section 29, of Article 2, of the Constitution, in regard to the credit
In the clause under discussion, in this case, the only difference in the language employed is, that “concurrence” is used instead of consent. These words are used in that part of the Constitution we are construing synonimously and interchangeably. All the reasons which have beén stated or exist, for construing consent to mean an active, affirmative act, on the part of the voter, to manifest his consent, apply with equal force to give a like construction to the word “ concurrence,” and this we do. It follows, the sixth Section of the Act in question is unconstitutional. The Constitution requires two-thirds of the qualified voters in the county to concur in the removal. . The mode of concurrence is left to be prescribed by the Legislature. The section of the Act we are considering, requires a vote of two-thirds of the qualified voters of the county, on the basis of “the next preceding Governor’s election.” The Constitution requires two-thirds of the qualified voters at the time the vote is taken. The sixth section is repugnant to the Constitution, and is void. The number it requires, we add, may be the same as that demanded by the Constitution, It may be more o? less. The number of qualified voters in the county, when the vote is taken,
3. The question now arises, if the sixth Section of the Act of 1873, be unconstitutional, are its other sections valid and constitutional ? The rules on this subject are thus laid down by Judge Cooley, in his work on Constitutional Limitations. He says: “A Statute may contain some (unconstitútional) provisions, and yet the same Act, having received the sanction of all branches of the Legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exceptions. It would be inconsistent with all just principles of constitutional law, to adjudge these enactments void, because they are associated in the same Act, but not connected with, or dependent on, others which are unconstitutional. 'When, therefore, a part of a Statute is unconstitutional, that fact does not authorize the Courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the Legisla
Let us apply these rules to the Act of 1873, Ch. 103. Let us suppose the Legislature had wholly omitted from the Act the sixth section. In such case no serious difficulty could have arisen. The Constitution itself provides, as we have seen, that the number of the votes concurring for the removal of the old county seat must be two-thirds of the qualified voters of the county. This number cannot be varied by legislation. All that was necessary to carry this provision into effect, was for the Legislature to yield its assent, and direct the mode in which such concurrence should be manifested. And the fact that the sixth section is declared unconstitutional, can have no
4. It has been further insisted, that if the Act of 1873, be held constitutional, then Grundy county is not embraced therein.
The first Section thereof is in these words: “ That hereafter, when the people of any county shall desire to remove their county seat, except when the old county has been reduced by the fraction of a new county, it shall be done in the following manner.” It is argued by the counsel of petitioners, that Grundy county is within the exception; that it is an old coimty, which has been reduced by detaching therefrom a fraction of its territory, and adding such fraction to the new county of Sequatchie, within the meaning of the section last aforesaid; and the clause of the Constitution heretofore quoted on this subject, and that consequently, said section of the Act of 1873, does not embrace Grundy county. "We have fully con
On the facts of this case, as presented in the petition for a writ of certiorari, whether there be any judicial remedy, and what that remedy is, if it exist under our system, are questions upon which we intimate no opinion whatever.