76 Tenn. 74 | Tenn. | 1881
delivered the opinion of the court-.
The controversy in this case is, whether the county judge of Williamson county or the quarterly court, composed of the justices, has the right to fill a va-caney in the county clerkship occasioned by the resignation of the regular incumbent.
The defendant Campbell was appointed by the county judge to fill the vacancy, and inducted into the office; subsequently, the relator Johnson was appointed or elected by the justices at an adjourned meeting of the quarterly term, but the defendant refusing to surrender the office, this proceeding was instituted in the circuit court of the county under the . provisions of the chapter of the Code beginning with section 3409.
It is now argued that the bill can only be filed by the district attorney upon the direction of the Legislature, or of the Governor and attorney general for the State. Sections 3412 and 3413 provide: “That the suit is brought by the attorney general for the district or county, when so directed by the general assembly, or by the Governor and attorney general of' the State concurring.” Sec. '3413: “ It is also brought on the information of any person, upon such person giving security for costs of the proceedings, to be approved by the clerk of the court in which the bill is filed.”
Nor are we inclined to think that leave of the ■court was necessary to file the bill. The chapter of the Code prescribes this as a remedy, where, among •other things, any person unlawfully holds or exercises a public office; and by secs. 3419 and 3420, it is provided in substance that the rights of the person really entitled to the office may be set up in the bill ■ and adjudged on the hearing of the cause, so that in reality it is a mode by which the right to the office may be determined, and the contest between different claimants adjudged, if the attorney general for the district or county chooses to allow the proceeding to be instituted by his authority. It is styled by sec. 3411, “a bill in equity,” and the chapter has no provisions requiring leave óf the court to be 'first had. While it was intended as a substitute for the obsolete writ of quo ivarranto, or information in the nature thereof, yet the entire proceeding is regulated by the chapter referred to. The filing of the bill by the
This brings us to the merits of the controversy, that is to say, whether the power to fill the vacancy belongs to the county judge or the quarterly court, composed of the justices. The very elaborate and carefully prepared arguments of counsel have furnished plausible reasons to support a decision either way. The county court of pleas and quarter sessions, composed of the justices of the county, was established in iiorth Carolina before the formation of the State of' Tennessee, and was regarded as one of the established courts when the - government of this State was organized, and' so continued until the adoption of the constitution of 1834. Previous thereto the Legislature' had, from time to time, reduced the number of justices required to hold for some purposes, but the organization of the court and its general jurisdiction, remained the same. After the adoption of the constitution- of 1834, which left' the establishment of inferior courts to the Legislature, by the acts of 1835,. the judicial system was reorganized, and by chapter 6-, this court was re-established under the name of the. “county court,” to be composed as before of the justices of the county. All jurisdiction, however, over jury trials — which it formerly had — was taken away
By the act of 1837 — 8, amending the act of 1835, provision Avas made by which all except the quarterly terms of the courts might be held by three of the justices to be selected for that purpose, styled the quorum court;, and afterwards the judicial powers of the court to a great extent, as they were increased from time to time, were vested in this quorum court: Code, secs. 4201-2-3. The coui’t, however, remained the same, the only • difference being that for certain purposes only three justices were required to be present. The quarterly terms were still held by all the justices or a majority.
The act of 1858, creating county judges for certain counties, Williamson among others, transfers to the county judge, who is to hold the monthly courts, the powers and jurisdiction of the quorum court, and provides that “ The county clerk shall be the clerk of the county court to be held by the county judge”: Code, sec. 4199. It is conceded that the power to fill the vacancy is vested in the court, but the question is whether it is th'e quarterly court held by the justices, or the monthly term by the county judge.
The second clause of art. 7 of the constitution of 1870, which is identical in this respect with the constitution of 1834, is in these words: “ Should a vacancy occur subsequent to an election in the office of ■sheriff, trustee or register, it shall be filled by the justices; if in that of clerk to be elected by the
The question is, the meaning of the language, “that if a vacancy occur in the office of clerk to be elected by the people, it shall be filled by the court.” Clerks of the county court are elected by the. people, under a previous article of the constitution, and therefore the clause quoted includes county clerks. But inasmuch as the court is sometimes composed of the justices and sometimes of the judge, the question is which shall exercise this particular power.
The constitution only provides the general rule, that is to say, the vacancy shall be filled by the court; but as the county court was one of the inferior courts which the Legislature might ordain and establish, it results that the Legislature might change the constituents of the court and regulate or change its jurisdiction, or in other words, might provide as it did do, that for some purposes all or a majority of the justices should be present, for other purposes three were sufficient, and finally that the powers and jurisdiction formerly exercised by the three justices should be transferred to the county judge. In other words, while the Legislature could not change the general rule of the constitution, “ that the vacancy should be filled by the court,” it. might, nevertheless, say who should constitute the- court for one purpose and who for another. This principle is settled in the case of the State v.
The clause of the constitutions of 1834 and 1870, in regard to filling the vacancy, is similar to the clause of the constitution of 1796, in regard to filling the office by appointment in the first instance. So that it was competent for the Legislature, either under the constitution of 1834 or 1870, to provide that this power of filling the ' vacancy, conferred by the constitution upon the court, should be exercised in any mode the law-makiDg power might deem proper, or that for the exercise of this power all the justices should be present, or any given number, or that the power might be exercised by the judge.
The case then turns upon the construction of the several acts of the Legislature indicating the legislative intent upon this question. We have seen that the
But if the question were otherwise doubtful, the fact that the act of 1796, from which sec. 819 was taken, was directly held to apply to a vacancy in the office of county court clerk, would seem to be conclusive. It is true this was previous to the constitution of 1834, and if the Legislature had at any time subsequently provided that the appointment to fill a vacant clerkship should be otherwise exercised, the argument would be destroyed, but not having
Furthermore, the third section of the act of 1875, ch. 43, is to the same effect. ^This is “an act to lessen. the number of justices composing the quarterly courts,” and the first and second sections relate to that-subject. The third section is as follows: “That should any office be required to be filled, or vacancy occur in any office required to be filled by the county court, it shall be the duty of the clerk, or if there be no clerk his deputy, and if there be no clerk or deputy, the acting chairman, to give at least ten days’ notice to every justice of the peace of his county, to assemble at the court-house of the county, in order to fill such vacancy; and in filling such vacancies all the justices of the county shall be entitled to attend and draw pay, but shall not draw pay for more than one day, and a majority of the justices of the county shall be necessary to constitute a quorum.”
The language of this section applies to any vacancy to be filled by the county conrt, and as this includes a vacant clerkship, and especially as the mode of filling a vacant clerkship is not otherwise provided for, we see no reason why this act should be held not to apply to the mode of filling a vacant clerkship. This is further strengthened by the circumstance that the act refers to cases where there may be neither clerk or deputy clerk, and naturally the inference would be that iu such case the vacancy in that office would be the one to be filled. We may add, if this were a question of doubt, the power should be held to belong to the justices,
This was the conclusion of the circuit judge, and his decree will be affirmed.