8 Tenn. 168 | Tenn. | 1827
delivered the opinion of the court. The defendant was a constable of Williamson county, who had been indicted for extortion; and at the July term, 1824, the cause came on for trial, and he was convicted, and judgment given by the county court, that said Fields be removed from office, and fined ten dollars; from which judgment he appealed to the circuit court. The solicitor for the state then moved the court, that pending the prosecution in the courts above, Fields should be suspended from exercising the office of constable. Upon this motion, the court set forth, “that they are the same justices who sat upon the trial of the indictment against Fields, for oppressively taking out an execution, and for extortion, by collecting money and receiving fees, by color of the same, of one D. Knight, at the instance of J oseph Taylor, and who pronounced judgment that said Fields be removed from office, and fined ten dollars ; from which judgment an appeal was taken to the circuit court; and all the abovementioned facts and circumstances being known to the court, it is ordered by the court, that the said Nelson Fields be suspended and deprived of the privilege of exercising the office of constable, for said county of Williamson, until the said cause shall be finally determined and ended in the courts above.” From this order of the county court, Fields prayed an appeal, which the court refused to grant; to which refusal, Fields filed his bill of exception. He then filed his petition with the circuit
Upon this statement of facts, the counsel for the defendant, Fields, contend, that the attorney for the state had no right to his writ of error on behalf of the government,' because this is a criminal cause; to which it is a sufficient answer to say, that this is not a criminal proceeding, affecting the person of the defendant; that it merely goes to deprive him of a franchise, granted to him by the same power who now claims the right to take it away for a misuser, and the state and the defendant have equal rights to a writ of error. That the defendant had the right, is clear. This is settled by the case of Sevier vs. the justices of Washington county, Peck’s Rep. 334; see act of 1811, ch. 72, sec. 11. And by the act of 1794, ch. 1, sec. 45, it is made the duty of the solicitor to appeal, if he thinks the state has been injured.
But the main question is, had the county court the power to remove or suspend the constable? To ascertain this, we are compelled to resort to the common law, there being no statute that applies to such a case. The .English courts of quarter sessions in this respect, have had, and exercised a jurisdiction similar to our courts of pleas and quarter sessions; and to the practice of those courts we are compelled to resort, to ascertain the common law upon this subject. Sergeant Hawkins, in his Pleas of the Crown, vol. 2, p. 99, sec. 38, says, “that the sheriff or steward, having power to place a constable in his office, has hy consequence a power of removing him.” On the same principle that' those who appoint, have authority to remove, have the justices of the peace, time out of mind in England, both appointed, and, for good cause, removed constables. (2 Hawk. 103, sec. 49.) Burns, in his Justice of the Peace, explains the above general authority, and states the practice to be, that a consta?-
Officers of courts stand upon the same footing, and therefore the precedents made, in reference to attorneys in England, are every way as conclusive, as if the judgments had been given directly against constables; other than that, the attorney stands upon much higher ground than the constable. If an attorney has been convicted of a crime, he is deemed a person unfit for the office, a*d is stricken from the roll, (Brownshall’s case, Cowp. 829,) and was commonly sworn in former times never again to practise in any of the king’s courts. (2 Inst. 214; 4 Inst. 101; 2 Inst. 212; Jerome’s case, Cro. Car. 74.) Or if an attorney has been guilty of conduct corrupt in the estimation of the court, he will be stricken from the roll as above, although it does not in law amount to an indictable offence. (King vs. Southerton, 6 East 142; 1 Com. Dig. 630; 2 Hawk. 219.) These authorities fully establish the powers of the courts to inquire, upon evidence, in a summary way, into the conduct of its officers, and to remove them, in certain cases, if they are thought unfit for the station. I would here remark, that the duty of the attorney in England, differs, in many respects, from those of our attorneys, who are counsellors also. ’ They are hoL den to be peculiarly the officers of the court, and subject to its control. (1 Com. Dig. 630; 3 Term. Rep. 275; 1 Burr. 20; 1 Stra. 621; 2 Burr. 792; 1 Salk. 87; 1 Burr. 298; 1 Atk. 139; Gwyn vs. Kerly, Strange 402.) Having no reports of the proceedings of the inferior courts in England, resortmust be had to the rules imposed upon higher and other officers, acting in the superior courts, who have power, partly discretionary over all their officers; (2 Hawk. 219, sec. 12,) and this, from necessity; for, without it, they could not possibly exist.
The English'courts of quarter sessions' having the power to remove constables, what power have our courts of pleas
By the constitution, ar. 6, sec. 1, the county courts are given power to appoint constables; this clause in the constitution recognizes the act of 1741, ch. 5, sec. 3; by virtue of which, constables were appointed before the formation of the constitution. This act creates the same relation between the constables of this state and the county court, which existed between that officer, and the courts of sessions in England. The third section of the act of 1741, is in these words: “That each and every constable so appointed, nominated and sworn, is, and they are hereby invested with, and may execute the same power and authority, to all intents and purposes, as the constables within the kingdom of England are by law invested with, and execute.” It is from this statute that the constables derive all their powers, and by which they are put upon the footing of constables in England, are governed by the common law, and subject to the control of the county court, for refusing to do their duty w'hen precepts are directed to them by a justice of the peace, as will be seen by the 8th section of said act. Before our revolution, there can be no doubt, that all the common law rules applied to constables, and that the county courts having the power to appoint, had the power to remove, to the same extent the courts of quarter sessions of England had at the time of the passage of the act of 1741.
Has the constitution of the United States, or of this state, abridged the powers of the county court in this respect? As the provisions in the two instruments referred to, are the same in substance, I will only examine the constitution of the state of Tennessee, and inquire whether the funda
This section was copied from Magna Charta, ch. 29, (2 Inst. 45,) and was the law of the land at the time of the adoption of the constitution, as the acts of 1715 and 1778 show, to the same extent it now is; yet that part of Magna Charta was within the reach of legislation, beyond which the convention placed it. The construction of this section of the great charter of the liberties of Englishmen, (and since our revolution, of all the people of the United States of America,) has, for centuries, put to rest the question, whether the courts have power to punish for contempts, and regulate their own officers, or remove them in particular cases; as will be seen, by examining the Com. of lord Coke, 2 Inst. 45; Sullivan’s Lee. 247; 1 Hum. Hist. Eng. 450; 6 Henry’s Hist. Eng. 79, 80. Hence this part of the constitution does clearly not stand in the way of the exercise of the common-law-power of removal. But it is contended, that the 14th section of the 11th article, precluded the county court from proceeding otherwise than by presentment or indictment, the defendant being criminally prosecuted. To this argument, it is a sufficient answer to say, that the proceeding to remove, was not of the criminal nature contemplated by the constitution; that a removal from office, for an indictable offence, is no bar to an indictment, conviction and punishment for the same offence. The argument proves too much, when it affects to maintain, that there must be a conviction for the extortion, before there can be a removal from office; and that the removal must be predicated upon the conviction. Now, if the removal was a punishment, in its nature criminal, the defendant would be first fined and imprisoned for extortion, and then punished a second time, for the same crime — which is contrary to
It is further contended, that the 10th sec. of the act of 1796, ch. 7, requires, that a constable should be tried and convicted for extortion by indictment, before he is removable by the court. This is clearly not the meaning of the act, for it relates to other officers of the government; and if a judgment by motion, or upon the verdict of a jury, in a civil action for receiving fees not due, or for violating the act in any respect, was twice given against the officer, the court,
It is also urged, that the county court is a tribunal of limited jurisdiction, and therefore every thing must appear upon the record that shows the correctness of the judgment of the justices who acted upon the case. The county court has as ample powers to punish its officers, as any court in the government, and is a court of very general jurisdiction in civil matters, even of more than the English court of common pleas, which has ever been ranked as one of the superior courts of the kingdom. Campbell vs. M'Iver and Lusk, 4 Haywood 60. It must appear that the party had notice, as in like cases, to show cause; and a judgment of this nature would be erroneous, (and perhaps void,) in every other court, if this fact did not appear. But the judgment of removal need only be general; and if the defendant is dissatisfied therewith, he may appeal, and have the matter retried in the circuit court; or he may file his bill of exceptions, and set forth the evidence upon which the judgment was given upon the record, and then take a writ of error. 1 Phillip's Ev. 233; Bul. N. P. 516. This is the uniform and correct practice in entering up judgments in courts of law, in cases of contempt, and others of a similar nature, within which latter class the present falls. Queen vs. Patty and others, 2 Ld. Ray 1108; 2 Atk. 489; Yeates’ case, 4 John. 367.
The defendant in this case had notice, and appeared and defended himself before the county court when suspended. The court having jurisdiction, we are bound to presume they acted correctly, and that the proceedings are according to law, unless the contrary appears. 2 Hawk. ch. 15, sec. 73 and 76; Yeates' case, 4 John. 366. The court having
This cause was argued in 1825, examined with care, and the above opinion formed and written by myself; but by reason of the absence of one of the sitting members of the court at the end of the term, no judgment was rendered in the cause at that term. Two members of the court now sitting, have, for the first time, heard the cause at this term of the court, when it was re-argued.
No reason has occurred to me, why the opinion heretofore formed, should be, in any respect, altered; but my brother judges, from the great pressure of business now before the court, have not had leisure to examine all the reasoning employed in forming that opinion; nor do they deem it incumbent on them to do so, in this particular cause; and, therefore, instruct me to say, that they concur therein, so-far as to.order, that the judgment of the circuit court be reversed, and that of the county court affirmed; which court they conceive to have been well warranted in suspending the defendant in error, Fields, from the exercise of his office of constable for Williamson county, after his conviction for extortion, and an appeal taken therefrom, until the cause of the state- against him, upon the indictment, was determined in the- court above.
The attorney for the government has asked this court, to instruct their clerk, to tax to him, in the bill of costs, a fee of five dollars, in each of the courts through which the cause has passed. Is the solicitor entitled to have his fees taxed;,? By the acts of 1801, ch. 33, sec. 2; of 1807, ch. 13, sec. 2, of the court law of 1809, sec. 19; of 1817, ch. 65, sec. 4, the solicitor is bound to attend to every matter and every prosecution, in which the state is, in any wise, interested, in every court within his district. A proceeding against a d'e-' linquent constable, to remove him from office, is as much a . matter wherein the state is interested, as a prosecution for felonyand the solicitor is as much bound to attend to it. The act of 1815, ch. 136, sec. 2, provides, “that in all pro-.
On the matter of costs, the rest of the court gave no opinion.
Reasonable notice must be given: Feb. 12th, 1815,1 Salk. 98, pl. (4) 2 Haywood, anonymous, 73; 2 Hayw. 339; Roberts and als. vs. Beesly and wife,3 Haywood 299; Campbell vs. M'Iver, 4 Hayw. 63, 5 Hayw. 155; Cooke 360; Sevier vs. the justices of Washington county, Peck’s Rep. 343, 347; Rushton vs. Aspnall, Doug. 679; 1 Saund.33.