13 Tenn. 271 | Tenn. | 1833
Lead Opinion
delivered the opinion of the court.
The preliminary question is, whether John H. Martin, Esquire, judge for the time being, who tried this cause, had power and jurisdiction to preside. He was appointed by virtue of the act of 1827, ch. 37. Judge Williams certified to the Governor that he was from ill health unable to hold his courts without endangering his health of life: whereupon Mr. Martin was commissioned to hold the courts of the third judicial circuit, and transact the duties of the Judge of said circuit, until he should be notified by Judge Williams that the health of the latter was restored, so that he was capable of attending to his own' duties; which notification should terminate Mr. Martin’s commission and powers as a circuit Judge. Had the legislature the power to bestow on the Governor, or any other agent, the authority of appointing Judges of general jurisdiction ? It is an axiom in government, that what the legislature has not power itself to do, cannot be conferred on an agent; the principal having.no authority, the deputy can have none. 1 Verger’s Rep. 457, Marr vs. Enloe. Whenever a state'constitution prescribes a particular manner in which power shall be executed, it prohibits every other mode of executing such power. On that particular subject, the authority is exhausted by the constitutional provision, and an attempt to render it nugatory by law, would be an attempt at repeal. The constitution being the paramount law, the act of assembly coming in conflict would be void. Let us apply this rule • to the present case. The fifth article of the constitution provides, that “the general assembly shall, by joint ballot of both houses, appoint judges of the several courts of law and equity, who shall hold their respective offices during their good behavior.” Here the constitution has made no exception in favor of the legislature giving authority by law to an agent to appoint judges. The two houses acting jointly, and voting by ballot, is the only 'appointing pow~
This clause never contemplated that the judge for the whole people, and of general jurisdiction, extending to 'every member of society, should be appointed by the governor. Cases in courts, which the judges in office should not be competent to decide, are alone referred to; and to decide between the parties to such particular causes, men of law knowledge maybe appointed. In all other matters, the regular judges are in the exercise of their full powers. These the legislature had no authority to take away, without resignation or removal; they continued during good behavior; and when they once ceased, they ceased forever. In violation of these principles, the act of 1827 authorizes a circuit judge to surrender every attribute of judicial power into the hands of the governor, to be by him conferred on another, so' long as the circuit judge should see fit and proper, were it during life; but whenever it suited his health or convenience, he had power to bestow on himself the full power and authority conferred on his late successor, depend-ant wholly on his will for the tenure of the office. Suppose the legislature had by the act of 1827, provided, that whereas Judge Williams was infirm, they appointed John H. Martin, Esquire, in his stead, for one year, with all the powers and jurisdiction said Williams had, and of which the latter was thereby deprived for said term; and that said Martin should receive the salary of Judge Wil
The commission of John H. Martin was merely void,' and he incapable of doing any judicial act.
It is supposed the acts of Assembly passed, and acted-upon, authorizing the governor to appoint special judges of this court, in particular causes depending therein, where a lawful number of the judges were not qualified to de-' cide the same, were also beside any power conferred by the constitution, and rested on the unrestricted and origi-ginal powers of the legislature; and that the sanction of such laws after mature consideration by this court, gave a construction to the constitution which could not be departed from in this instance. The great question presented in 1826, on the appointment of special judges,was whether the acts of Assembly directing the governor to appoint, were a true exposition of the constitution.
Men of law learning had been appointed' to try causes specially named in the commissions, because a competent number of the regular judges were disqualified to hear and determine the same.
1. It was objected that all the judges of this court must be incompetent in the particular case, before men of law learning could be commissioned to determine it.- To this it was answered, that when the constitution was framed, the old superior court was in existence, and especially referred to;' any one of the judges of which, was competent to hold the court. That the first section of the fifth article had authorized the legislature to vest the judicial power in such superior and inferior courts of law and equity as the General Assembly should from time to time
It is certainly true, that every court has its jurisdic
Dissenting Opinion
dissented, gave a viva voce opinion, that the act of 1827, ch. 37, was constitutional, and the judicial acts of John H. Martin, Esq. valid.
Judgment reversed.