206 S.W.2d 793 | Tenn. | 1947
The present suit was instituted upon relation of twenty-seven taxpayers of Roane County by the filing of the petition in Chancery making defendant thereto Elmer L. Eblen, the county judge. This petition charges Eblen with the commission of grave malfeasances in office and prays that he be "ousted from office as county judge and fiscal agent of Roane County" if these charges are sustained *568 upon the hearing. Eblen demurred to the petition on the ground that the chancery court was without jurisdiction to grant any of the relief prayed. Relators moved to strike the demurrer on the theory that an answer is the only pleading allowed a defendant to a petition filed under the ouster law, Code section 1877 et seq., and moved for an order pro confesso because defendant had not filed such answer.
The Chancellor overruled both motions and sustained the demurrer on the ground that Eblen as county judge of Roane County under the aforementioned legislative act was a judge of an inferior court within the meaning of article 6, section 1 of the Constitution and, therefore, can be removed from this office only by the legislature; that, therefore, demurrer challenging the jurisdiction of the Court was proper notwithstanding the requirements of the ouster law.
The first of the two questions presented on this appeal of the relators is whether the demurrer was a permissible pleading in view of the fact that the ouster law forbids any response other than an answer to a petition filed for the purpose of removing an unfaithful public officer. A number of code sections are referred to and discussed in the briefs, but the view we take of this question renders it unnecessary to consider them. Any official who can be removed by the Court under the provisions of the ouster law is not permitted to demur to the bill filed for the purpose of procuring such removal. The ouster law forbids any response other than an answer in such a case. Code section 1887;State ex rel. v. Ward,
It must, of course, be conceded that the Constitution withholds from the Courts the power to remove from office for official misconduct judges of courts created under the authority of article 6, section 1 of the Constitution. Morrison v.Buttram,
Relators seek to distinguish county judges from judges of other courts coming within the terms of this constitutional provision by the insistence that a county judge is only a county officer and is required to perform many duties which are not of a judicial character. In many particulars he is a county officer, but he is not merely a county officer. Ledgerwood v. Pitts,
Distinction is sought likewise to be made because of the fact that the salary of the county judge is paid entirely out of the county treasury and because he is by the provisions of the statute permitted to practice law. County judges have never received payment of salaries from the state treasury. The provision in the Roane County act permitting the county judge to practice law is only a declaration of a privilege already granted to county judges by a statute enacted in 1855 and carried in code section 10224. This code section was held to be constitutional inReynolds v. Chumbley,
We find no error in the decree of the chancellor. It is affirmed with costs adjudged against appellants and the sureties on their bond.
All concur. *572