*1 bright Albright, v. 192 Tenn. 241 S.
W.2d 415 [1951]. give testator wanted his stock to heirs,
a fluctuating class of the interest in
the stock to at vest them the death of remainderman, Wright, last and actual
possession to follow the death of the life
tenant, testator’s widow. He expressed no contrary
desire in his will to this result.
We affirm the decree of the Chancellor.
DYER, J.,C. CHATTIN and HUM-
PHREYS, JJ., WILSON, Special
Judge, concur.
STATE of Tennessee Thomas H. SHRIV By District on rela ER, Attorney General, tion of Thomas HIGGINS A. et
Winfield DUNN al. Tennessee. 19, 1973.
March April 23,
Rehearing In Part Granted *2 Gen., Shriver, Atty. Dist.
Thomas H. Nashville, appel- Higgins, Thomas A. lant. Gen., Roberts, Atty. Asst.
Robert H. Nashville, M. Pack. for David Nashville, P. DeWitt, Hewitt Jr., Ward Turley, F. Tomlin, for Thomas Jackson, Jr. Nashville, Rob- Branstetter,
Cecil D. Taylor. ert L.
OPINION McCANLESS, Justice. first, is an aspects: has two suit warranto, of quo nature
action brought authority persons under the names of three from the list of seq., et had 23-2801 the name those who been considered for nomina- Shriver, Thomas tion. Those State Tennessee H. whose names Commission General, Miles, III, District relation of on submitted were Charles W. Higgins, practicing lawyer Walker, Mark Anthony Jr., Thomas A. Thomas Turley, County, July and citizen Davidson to have F. On the Gov- *3 Jr. claims judicially conflicting determined the ernor announced that he had appointed Mr. persons Judge Turley of two to the of to fill the vacancy, appointment office of the 1, Supreme September the left effective Court of va- to be Tennessee Creson; Judge Larry cant the death of The Governor did not issue writs of and, second, in- it seeks to have declared election to of the election commissioners and valid unconstitutional 17-701 Sections State, in the 17- accordance Section 17-716, inclusive, T.C.A., origi- to enacted 113,T.C.A., ordering an fill the election to nally Chapter the of 198 of Public Acts publication and there no call- 1971, the that nom- statute for the ing an such election. ination, appointment, of and election appellate of the courts of the State. July 31, 1972, Taylor pub- L. On Robert lically announced that he was a write-in The Chancellor decreed that neither of candidate to the in election fill the claimants, Turley, Jr., the two Thomas F. 3, to be held August 1972. The announce- Taylor, and Robert entitled to the of- L. publicity ment received in the news- wide fice; but it was his that opinion because papers and on the sta- radio television unnecessary reaching had been that de- tions of the Ihe media also State. news pass validity upon to of cision Section publicity gave to a statement the Gover- T.C.A., et make seq., 17-701 he to declined Taylor eligible nor that Mr. adjudication validity of the stat- of the office. ute. 1972, 3, August In the of election Turley, Jr., L. Thomas and Robert F. 668,000 throughout more than the State Taylor appealed from the Chancel- have these, 4,030 persons voted. write- cast Of decree the District Gen- lor’s Supreme Judge in ballots for Court. of appealed from his eral and the relator were coun- Votes cast for office validity rule declining action to on the 3,301 ties; Taylor Robert received L. challenged of statute. votes, votes, Turley 555 Thomas F. others 174votes. ap- stipulated The facts were Supreme peals are to the Court. 1972, 3, August Mr. After election of had elected Taylor announced that he been Creson, 1972, 19, Judge Larry On June and would the office. Court, home in died at his member 20, 18, 1972, Secretary following day, August Memphis. On June officially 1972, Taylor a certificate Dunn issued Mr. Winfield State Governor recitation gave notice the death to the Chairman contained duly Judge, Appellate Nominating Com- had “been Western he Division, Supreme mission, provisions of Tennessee under the established 3, 1972, On seq., Election.” (Chapter August General et Section 17-701 1972, Taylor re- the oath August 23, Mr. took 1971), Acts of 198 of Public proceedings Judge to nom- Court before quested him initiate to appointment eligible of the State. persons inate three one of Chancellors vacancy. fill the issued the Governor On ap- Turley, Jr., a select- Thomas F. commission July the Commission On him pointing ed submitted “Justice Tennessee, tion, attempted the office gain effective has State and has been Septem- of the Peace September to serve until Justice attempted qualify 1, 1974, sworn in and and until he shall have been ber as a pursuant now holds himself out elected and retained Justice Cleveland, City Annotat- the Peace for the Tennessee Code Section [Emphasis Tennessee.’ added.] ed.” suit, Bryant question In there was no but complaint Septem- filed as, attempt qualify hold and exer- ber named as defendants Gover- gave quo war- Secretary of cise the office rise nor Dunn and State Winfield under 23-2801. complaint, filed ranto action An amended C. Carr. Joe 26, 1972, defendants September added as is consonant with “Such Pack, Attorney and Re- David M. legislative purpose underlying clear *4 Turley, Jr., Robert porter, Thomas F. and enactment of Section 23-2801. Su- Taylor. L. preme considering its of Illinois in Court underly- quo stated the warranto statute At hearing the Chancellor dismissed following purpose in the ing legislative Dunn, Carr, the suit as to defendants terms: Pack, appellants and none of the has as- “ signed in as error the action Chancellor’s solely ‘But the motion resisted on dismissing Attorney those defendants. ground petition not show does Pack, although dismissed as a de- possession fact the essential fendant, participates appeal because defendant, by user of the office declaratory judgment aspect usurped. having charged he suit. go to the objection . The does not controversy, and no sub- merits At the hearing the Chancellor was of reasoning ought indulged tle to be opinion and held that an qtw action war- people the demand defeat defendants, against ranto lies Thomas warrant sets know what defendant Turley F. his Taylor. Robert In L. up alleged.’ any claim the office opinion memorandum he wrote: [Emphasis added.] 23-2801(1) “Section is not to be read Callaghan, People ex Evans v. rel. narrowly so give quo would to a rise (1876). Ill. only warranto when actually someone is performing given functions of of- people’ “The ‘demand of the to know fice. statement consistent with right what a man claims title to State, rel., Tennessee case law. In ex public 23-2801. office underlies Section Bryant Maxwell, 189 Tenn. legislative purpose would This clear (1949), Supreme S.W.2d 833 to read defeated were this Court complaint charged noted that the Max- from narrowly so as to exclude statute ‘ unlawfully attempt- well . with . . ques- in scope here its the two claims ing qualify as and hold and exercise tion; Taylor claim Turley and for both the office of a Peace Justice possess lawful title to the ’ Bradley County. . . . 187 [189] every effort question. Each has exerted at Tenn. S.W.2d [Em- [224 833]. the of- appropriate to secure he deemed phasis Paragraph XIII of added.] Taylor ac- example, defendant fice. For alleged the original complaint Bryant Certifi- Secretary of cepted the State’s following: office, Election, oath of took the cate of “ Election copies filed Certificate your charges de- ‘And relator the Clerk fraudulent, of office with and the oath pursuant
fendant of his Court, of- reported to Supreme irregular illegal pretended elec- Supreme fice of the in Memphis lawfully qualified Judge elected and Jackson, appeared Supreme at Nashville If that con- Tennessee. Supreme Court’s Septem- session on validity depend tention on is valid its must ber 6 ready to assume a on the appellant seat the conclusion that this was elect- Court, quo filed keep warranto to ed to the office the write-in vote on Judge Cooper temporarily occupy- August ing seat, the vacant pub- at all times Taylor assigned has errors in Mr. four licly presently claimed that he is summary as that the Chancel- follows: Turley office. While defendant has lor that the appellant should held not been so in attempting active to take elected, lawfully in hold- (2) that he erred seat, there can be no doubt that he ing recognition of write-in votes rightful office; claims title to the he effectively the vast “would disfranchise issued a commission the Gover- majority of the cast votes citizens who nor, and appeared he likewise in Nash- the state wide election on ville at Court’s session on ”, (3) erroneously . that he failed to September 6, he has indicated that if his state- past consider the Court’s title to the office is vindicated ac- of an ments that lack of official notice tion, he resign position will as United place election whose time and are fixed States accept General and election, the Constitution will not vitiate perform the duties of the office in issue. *5 and that those electors who exercise their These considerations are sufficient right right vote cannot be denied the sustain an action in quo warranto have their votes counted the fact against both Tay- defendants Turley and vote, (4) electors chose not to lor under T.C.A. 23-2801. decision, Chancellor, his de- the “By holding warranto, to be a quo this prived prop- appellant of office and the his possibility the is excluded that is an this erty process without due of law. election contest. Resolution of the com assignment at first directed the peting claims here at issue not re does Chancellor, conclusion of second quire the go Court to behind election support and third are offered in of Thus, returns. this is not an ‘election first, and must validity of the fourth contest’ under the case law of Tennessee. depend on the correctness of the Chancel- Houk, Adcock v. 122 Tenn. 122 S. attacks. lor’s conclusion which the first State, rel., (1909), W. Bryant 979 ex v. assignments these results that the first of
Maxwell, 189 Tenn. 833 S.W.2d Taylor’s contention. conclusive Mr. (1949). Consequently jurisdiction requirements operated venue which or of a Judge of a An election applicable ‘election are not contests’ vacancy District General quo here. is a warranto. The ac This aat time than can held at no other be tion brought ju this meets the to fill such The election biennial election. requirements quo risdiction and venue though special vacancy is a election warranto.” Au as an same time must at the be held agree reasoning with both the We appears from general gust election. that this conclusion of the Chancellor Constitution, Article language of the is an quo action warranto under Section Boyd, Tenn. 5. Hanover Section appellants None of T.C.A. [1938], S.W.2d assigned as error the action of Chan- the Constitution 5 of Section is not an holding, subject cellor so and the provides: of Tennessee appeal. issue officers—Election—Vacancies.— n first “Civil consider contention We of- other civil is a Elections for that he Taylor, Robert appellant, L. Judicial state in grand from the division of the first Thurs- ficers shall be held on the vacancy hun- which August, eight one occurs.” day thousand seventy, and forever thereafter dred provisions These of the Constitution and next Thursday August first on the vacancy require of the Code respec- expiration their preceding the thirty days occurred more than each The term of tive terms service. election of be at filled computed from shall be officer so elected election. day September next the first succeed- ing his The term of office election. 17-113, T.C.A., required Section of- of other executive Governor and existing the circumstances fif- computed from the shall be ficers issue a writ of election to all commission- the election January next after teenth of ers of for election of the state or appointment No Governor. vacancy. to fill That is: Section be made vacancy fill a shall election to extending beyond the unex- period special "Writs gov- elections.—The his shall hold pired Every officer term. by issuing ernor shall order the election elected or until successor is election, proper writs giving notice special qualified. No appointed, thereof. vacancy in fill a election shall be held to Attorney, District Judge the office of or supreme ap- “In the judge case of for the but at the time herein fixed peals judge, the writs shall issue to all officers; and biennial election civil county commissioners of elections at next such shall filled state, and the shall for at least notice recurring more than Biennial election thirty days, by publication in a days occurs.” thirty after newspaper grand in each division In judge, state. the case a circuit implemented Assembly chancellor, criminal judge judge the enact- Constitution *6 special equal dignity court of with cir- 17-112,T.C.A., ment as follows: of Section cuit chancery courts, and shall the writs "Vacancies in a va- county issue to the election commission- office.—Whenever cancy, death, by resignation, either re- or circuit, ers throughout chancery divi- moval, shall occur in the office of special sion or district for which the judge or Court of held, election is to be and the notice chancellor, Appeals, judge, circuit or shall thirty (30) days be for at least judge court, judge of a criminal of a publication newspapers in one or more special equal dignity court of cir- circuit, of the said division or chancery chancery courts, vacancy cuit and special vacancy district. Whenever the such quali- office shall be filled prior occurs sufficient time fied voters of the whole state for su- date, given election notice shall be and preme judges and of the Court of qualify candidates will as in the case of Appeals, and such judicial office, however, district elections such judges, the other at the next biennial vacancy where the occurs too late for August, occurring election in than more period qualification such notice thirty days vacancy, after such (30) thirty for candidates but more than (30) governor in the ap- election, meantime the shall days before the notice will be point person given learned law thirty days at least as (30) above constitutionally qualified discharge provided candidates shall have until duties of said until such twenty-five election days such before elec- can vacancy be had. If a shall occur in qualify provided tion in which to as supreme judge office of a judge or party law either as a as nominee or an Appeals, independent Court of it shall be filled candidate.” appellant, Taylor,
The relies on requisites who with all the essential vacancy, placed guard election to claim the assume must laws the franchise validity quoted abuse, statutes against the above fraud or violence. they repealed by and that were not the en- present instance, “In the the number Chapter actment of the Public registered County voters Macon Acts of carried into the Code as vote, did who was more than suffi- 17-716, Sections 17-701 to inclusive. The cient, they way, if had all voted one enactment, valid, effect of the if re- changed the result as declared. pealed provisions kind of an for the have no knowing We means of how appellant, election that under which the their ballots would have been cast if Taylor, asserts title to the office he claims. voted, presume had and must their fail- Judge The office that Creson held be- ure vote result of want of no- tice; forty-five days came vacant with death therefore we have no assur- The ance that before the biennial election. Constitu- the result of this is an election required expression at people tion that the be filled of the will of the require- county, that election and to execute the judicial or of the district.” Constitution, ment Boyd, supra, spe- Hanover v. involved a enacted did T.C.A. cial election made the death necessary by required not order the election thirty-one of a District Attorney General Section. days In that election. Lauck, Barry spe- In case the (5 45 Tenn. Governor declined to order a Cold.) cial election and to therefor (1868], a case which the Court held issue writs notice, special by ap- election for want of undertook to fill the void pointment. Chancery thereupon said: mandatory injunction issued re- voluntary “But a mere omission to quired the call election commissioners to vote, part entitled, on the of those where special hold a fill the opportunity a full and fair has been of- unexpired The commissioners ad- term. fered, will not alone avoid the election. vertised and the election. held Those who did exercise their electoral upheld rights validity can The Court deprived not be the fair re- election, election and sults of the called attention to the fact the mere failure Dis- vote cast the election for question others to vote. The is not higher trict than whether all General was legal voters in the dis- *7 subject that in expressed trict to election actually their will at the polls, day except on that for the candidates for they opportu- but whether had the nity sheriff and that “there can be no which the observed requires, law do so. question people adequate but that the had election, being special “This a notice a notice and that there was election to the electors was essential to its validi- expression people.” full therein ; ty notice, and for want of this the elec- The Court continued: tion, so far as it concerns Coun- Macon
ty, was void. public “The was a matter of
knowledge. machinery The election up. set It can make little difference safety depends upon “The of the State machinery long who started the so as preservation integrity of the of the proper properly functioned on a occa- elective purity franchise and the sion.” elections; only pre- and these can be by requiring charged served the officers considering In the case we are no one thereto, in regard comply claiming by authority with duties act called or ad- voters, Taylor, qualified shall election; be elected appellant, vertised an shall be for their terms of service just votes campaign for write-in began a to the Constitu- election, eight years. at The schedule no votes days three officers provides that coun- tion of 1870 all cast in State’s were year general election that 4,030 than at the ties, the more elected only pro- terms their offices for the state- shall hold 668,000 in other persons who vote constitution, the term so that for Su- vided in the undertook to vote wide elections Judge the death of that was vacated preme Judge. Creson, every judge as the term of well there no election hold that We September began in office now on Judge of expire August 1974. and will appellant We therefore overrule following Article assignments error. Taylor’s words: for our consideration The issue now officers, and the of all “The election
twofold: di- filling all vacancies not otherwise or not Sections 17-701 (1) Whether Constitution, provided by this rected or statutory pro- sections manner as shall be made in such non-partisan for the election viding Legislature shall direct.” judges, Article Sec- are conflict with gen- provides for the tion 3 of the Tennessee Constitution Section 7 unconstitutional; the first Thurs- eral elections to be held on therefore expiration of day August preceding rights A determination offi- the terms of and other civil parties statute if it is found to under the special also that “No cers. be constitutional. vacancy in election shall be held to Attorney, Judge District the office of Historically, have been re- constitutions herein for the bienni- but at the time fixed garded providing permanent frame- officers; such va- al election of civil government. Customarily, work of do the next Bienni- cancy shall be filled at provide exercising gov- the details for days recurring thirty al more than power. reasons ernmental For obvious after the occurs.” all the they are not intended establish which, time, may law be nec- from time to requirement constitutional conditions, essary changing to meet but shall members of the power. only mark the broad outlines qualified voters State self-executing. Conflicting provisions consti of a fixing a than election envisions much more harmonized, possible, in tution should if providing date when it to be held If passing on the intent of the framers. participate. only qualified voters shall meaning of there should be doubt as to the must be made law nomi- Provisions seeming in the constitution language candidates, nating qualifying of certi- duty provisions, “it is conflict in its [the] *8 and State ex fication of results the like. portions of the court to harmonize such King Superior of Ferguson v. Ct. rel. ren which will and favor the construction County, Sup.Ct.) 140 (Washington Wash. operative, than one every der word rather 636, executory details can 250 66. P. Such and which make some words idle will provided either in the itself be Constitution Hale, County 200 meaningless.” Shelby are en- Legislature. They or left to the 503, Tenn. S.W.2d [1956]. 6, tirely 3. absent from Article Section Article 6 in Section 3 and 1, 128, Acts Court, Chapter Supreme passing the In Judges that the of the Section 1871, early date Legislature at that Chancery the Court and other inferior courts of 7, pro- needing general Specific next election. conceived Article Section 4 at the Act, legislative origin the That the vision made for the election of Gov- action. general appointing power expressed appointee the at the next elec- now ernor’s Arti- gave provided by Sections and tion as the Constitution. 17-712 6, power appoint 3, provision the no for to case cle makes Section vacancies, circumscribed, notice, qualification of consistent with and nomination 7, 5, by provision Article occurs Section the candidates even where the beyond general his the appointee shortly never election. could hold the next Act, course, pro- general next no vi- makes election. This Act did The 1971 6, merely to members controlling olence Article Section 3. visions the election of tempo- courts, supplemented by providing appellate it for a the most notable of the rary appointment fill a until the are in- far-reaching to of which Thus, general Legisla- required next election. the shall to run on cumbent be by opponent ture as against authorized and not Section record authority appoint exercised in it to make a list the vested that the Governor shall from provision filling by “the all vacancies the created for of three chosen Commission or for provided not otherwise directed the Act.
tfiis Constitution.” purpose expressed
The of the statute preamble governor in its is “to assist the pro the Even where constitutional qualified the best finding appointing rule self-executing vision is be the held to appel- on the persons available for service is: to the assist late courts of Tennessee “It to be observed that even of Tennessee elect best electorate provision case of a constitutional courts; insulate qualified persons to said legislature may self-executing en- said justices courts legislation act to facilitate the exercise pressure; im- political influence power directly granted con- justice; en- prove the administration of stitution; may legislation be enacted respect prestige of and hance operation provi- facilitate the of such the necessi- appellate eliminating courts sion, prescribe practice to be used by appellate jus- ty political activities enforcement, provide its convenient appel- make judges; and to tices and ” remedy protection rights for the ‘nonpolitical.’ courts late of Tennessee thereof, secured or the determination Act, provisions of it All of these place safeguards reasonable around us, general pow- seems to derive from differently, right. exercise of the Stated and, particular ers self-executing provision rule is that power vacancies reference necessarily does not constitution office, express public provisions from the power legislative subject, exhaust on the and, none of of Article Section 4 since harmony but must legislation be directly by necessary in- is either them the ex- with the and further constitution Constitution, contrary plication to the right ercise of constitutional and make valid. Act constitutional and more available.” 16 Sec. Am.Jur.2d, p. 280. Constitution, by Article Sections 4, requires Judges interplay of Article Court and the inferior courts
Aside from qualified In case no direct conflict be elected voters. there is Section Judges Act of shall 3 and the tween Article State; by qualified is still to voters under the Act *9 every eight Judges Chancery case of of the Circuit and regular be made at the they voters of the State and other inferior courts years qualified Courts qualified “shall be voters sent of three-fourths votes cast provision to adopted circuit to which are said election. This the district or assigned.” in 1870. providing provision a new The attack on the statute Art. 3 includes Sec. filling regard non-partisan amending vacancies with to the Constitution. method of appellate proposed of the The (Chapter may our courts amendment be submitted qualified Public 17-701 to the an Acts now Sections voters “at election”. inclusive, en- This is T.C.A.) to based one of the 1953amendments. voting pro- tirely on that the the insistence provides Art. ratifica- Sec. for in vided Sections 17-714 17-715 acts, private tion one of methods requirements of election within being “approval in an election ma- Article Section Section election,” voting jority of in said etc. those 5, of our Constitution. provision, know, originated This as we Tennessee does The Constitution of 1953.1 words, “elect”, “election”, or define it- us that if It seems to the Constitution not found nor “elected” and we have of ratifica- self denominates these methods any provision to we been referred elections, Chapter be that tion as cannot any deci- or of a statute or to Constitution elec- because unconstitutional defin- appellate our courts sion of one of to are limited provided tions therein ing these words. approval disapproval. are the elec- or So three instances There are provided tions Sections Constitu- provides and re- for referenda Constitution particular- tion referred to above. fers to as elections: them case, 4 re- ly the since Article poses wide discretion credit Art. Sec. respect filling to elections and County, City, given shall be of no or Town vacancies. person, asso- or loaned aid of to except upon an elec- corporation, ciation or District qualified held voters tion to be first Chapter 198 of relator, town, arguing as- city county, of such 1. Elections county to remove seat. “election” 5-401—5-406 bonds, obligation general to authorize “election” 5-1101—5-1025 public postwar works to “election” authorize 5-1108 —5-1109 bonds. municipal elec- to bonds for “election” authorize 6-1519 plants. tric public municipal works “election” authorize 6-1610 bonds. manager municipal city adopt “election” 6-1804 charter. charter, manager city to surrender 6-1808 —6-1809 “election” bonds, building industrial “election” authorize 6-2907 charter, manager-council adopt city “election” 6-3006 under that recall councilmen “election” to recall 6-3120 —6-3121 charter. bonds, municipal certain “election” authorize 6-3422 subscription for railroad “election” authorize 65-705 —65-709 stock. local tax. authorize sales “election”
67-3053 *10 490 part invalid, requiring of the act insist tutional then Acts of 1971 the Public void; such election is unconstitutional because
that the act is unconstitutional
express
Act in
terms
but
18 of the
Nominating
Section
Appellate
Commission
Court
sections, provi-
any
“if
its
part
provides
of
of
consist
provided for is to
therein
clauses,
sions,
sentences,
phras-
Assembly,
exceptions,
of the General
three members
unconstitutional,
es,
parts
or
Assembly
joint
thereof
held
the General
198,
invalid,
2,
3,
the remainder of
Pub.
void
Ch.
(Sec.
session.
Subsec.
and/or
effect,
T.C.A.)
act shall
in full force and
1971;
17-702(3),
continue
Acts of
Sec.
hereby
being
legislative
intent now
provision violates
They
contend that
2,
declared that
this act
have been
Consti-
would
the Tennessee
10 of
Sec.
unconstitutional,
passed
such
void
prohibition:
even if
includes this
tution which
in-
provision had not
invalid
been
and/or
shall,
Representative
“No
or
Senator
cluded therein.”
which he was elect-
during the time for
place
Assembly
thus de-
ed,
having
The General
eligible
any
clared that
statute
trust,
is vested
if
section of the
appointment to which
should
re-
Assem-
be unconstitutional and void the
in the Executive
General
of a mainder of it should
in full force
of trustee
continue
bly, except to the office
effect,
appearing
and it
to us that
literary institution.”
portion
complete
remaining is
in itself and
Bratton,
Carey
148
ex
v.
In State
rel.
capable
being
wholly indepen-
executed
174,
[1923], the
Tenn.
491
beginning September
part
that
the term
the
vacancy
as
fill such
appointment to
1, 1972,
express
the
terms of Sec-
the
limited to
the Court
one before
which the
vacancy
peroid
the
to
17-712(2)
the
tion
date of
period
the
between
already
appoint him
had
the
could
days prior to
Governor
thirty
occurs
which
expired
attempted appointment
day of
before his
last
election and the
general
next
became effective.
following that election.”
August next
error for
Court be-
“It
the
(4)
Turley assigns
error
the
Mr.
the
vacancy which
that the
to hold
low
holding that
Chancellor’s
Governor’s
created
attempted
fill was
to
Governor
power
appointment
fill
to
improper action.”
by his own
part
that existed was limited to that
31, 1972,
expired
August
in
term that
on
chal-
general and
assignment
first
is
17-112,T.C.A.,
sisting
was re
that Section
the Chancellor
lenges the conclusions
pealed
Chapter
by Section 17 of
198
con-
appellant’s
regard
reached with
to
provides:
Public Acts of
which
necessary
first con-
that we
tentions.
assignments.
sider his other
parts
“All laws or
of laws
conflict
provisions
this act but
with the
would
term of office
Judge Creson’s
portions
8-
limited to
of T.C.A. Section
His death
expired August 31, 1974.
17-112, and T.C.A.
T.C.A. Section
thirty days
than
occurred more
2-102,
repealed.”
hereby
are
made
This circumstance
August election.
treated
necessary
overruled,
assignment must be
be-
in two
parts,
be filled
having two
to
Chapter
cause
conflict between
there
no
part ending August
ways:
(1)
17-112,
Chapter
198 and Section
T.C.A.
filled
directed to be
the law
which
upon
imposes conditions
the Gover-
appointment,
(2)
the Governor’s
power
appoint but
not affect
nor’s
does
1, 1972,and end-
part
September
beginning
appoint.
term for which he can
Sec-
31, 1974,
filled
could be
ing August
repealed by Chapter
tion
The en-
way
in no
other than
election.
only
extent that the terms of the
to the
Chapter
provided that
actment
may
into
two statutes
come
conflict.
appointments to
make his
should
Governor
hold that
was without
We
the Governor
only
appellate
courts
fill vacancies
term to
power
appoint
Turley
Mr.
to the
eligible persons submitted
lists of
from
appointed him.
therefore
which he
We
not un-
nominating commission. It did
of error and dis-
assignments
overrule
au-
grant
to the Governor
dertake
appeal.
miss his
beginning
a term
thority
appoint
September first when the vacan-
following
assignments
error of
overrule
We
days before the
thirty
than
cy occurs more
pro-
appellants. The decree will
contrary,
August
biennial
election. On
opinion.
with this
nounced
accordance
provides:
(2)
Section 17-712
justices
of all
terms
“The
CHATTIN,
J., and McAMIS
WIL-
expire Au-
act shall
appointed under this
SON, Special Justices, concur.
August
following the next
gust 31
recurring more
general election
biennial
HUMPHREYS, J., dissents.
vacancy.”
thirty
days after the
than
DYER,
participate.
J., did not
appointment
made no
part
expiring
fill that
the term
HUMPHREYS,
(dissenting).
Justice
authority
had the
to make
1972. He
re-
petitions to
advantage of the
take
I
appointment
but did not exercise
original
my
parties to edit
by all the
hear
appointed
Turley to
authority. He
Mr.
by withdrawing
power
dissent. This I do
declares that
the Constitution
original
filing
peculiarly
in its
dissent
one
vacancies on this Court
place.
Legislature,
I concur in the result of much of
it is difficult to
business of
So,
prohibits
majority opinion.
conceive how Article
sake
this.
part
Suppose
provided
brevity,
only
I shall
mention that
had
for a
commission of nine
its
which I dissent.
own members
*12
Governor,
appointees
recommend
to the
I dissent from the redefinition
a con-
could it be said that this commission would
stitutionally
permit
mandated election to
unconstitutionally
Sup-
be
constituted?
only referendum,
a
that no one can run
so
pose
passed
whereby
it had
a law
it filled
except
appointee.
in the
vacancies, would this be unconstitutional?
negative.
The
answer must be
holding
I dissent
that mem-
from
no
Then,
how can
be
three members of
Assembly
ber of the General
can serve on
a
Legislature
serve on such
cannot
the nomination commission.
commission?
To the extent that the
Missouri
Modified
majority opinion
cites
ex
State
rel.
possible
Plan
for the selection of
Bratton,
174,
Carey
148
v.
Tenn.
253 S.W.
appointees
commission,
by a
it is constitu-
authority
invalidating
(1923),
705
7,
tional under Article
Constitu-
§
legislator membership on the commission.
provides,
tion of Tennessee which
“The
point.
in
a
This case
involved
filling
election of all officers and the
all
legislator appointed
to serve on
State
pro-
vacancies not otherwise directed or
nothing
There is
in
Election Commission.
Constitution,
vided
this
shall be made
delegates
Leg-
to the
the Constitution that
Legislature
such manner as the
shall di-
running
state elec-
islature the business
rect.”
So,
entirely
it was
reasonable
tions.
part
plan
improve-
This
is a vast
2,
apply Article
10 to
this Court would
§
had,
anything
ment over
we
and since
present
appointment.
case
entirely
legis-
unnecessary exclusion of
presents
altogether
question.
different
jeopardizes
lators
such a commission
this,
clearly right
I am not
If
about
arrangement,
this
I must dissent.
enough
there is at least
doubt to make the
My
dissent from the
that no
Grubb,
principle
154 Tenn.
of Wallace
member of the
can serve on
applicable. That case
sion Article 10. Ar- without § tional, balance it cannot be saved provides that ticle Senator § “/n/o It is fundamental the doctrine of elision. shall, time Representative during the part statute fall if the elected, that the whole must eligible he for which was is so connected with trust, held unconstitutional appointment to place office scheme, indispen statutory and such an or the which is vested the Executive thereof, part likely that it is sable except Assembly to the office the act Legislature would have enacted literary institution.” It would trustee of provision. proposi 2, 10, applies without the elided seem to be clear that Article § spelled in a number of cases and not tion out legislative, to offices that are not carry Tenn.Digest designed to can be found that are to commissions example, Statutes, 64(1). Hey For legislative out business. Since § Bank, right their candi- 151 have had the to nominate National v. Hamilton mann officers; elections dates and elect their this Court Tenn. 266 S.W. people right have had the to do permissible if the which is not said that elision did, Judge Taylor run legisla without nomina- defeats evident result attained Now, says majority Leg- tion. intent. tive islature can abolish this once constitutional legislative intent was Since the evident right to choose and elect rede- representative of create commission provision fining require so as not to inter- legislative, judicial executive elections, popular permit offi- but to these appellate nominating process ests in the cials, by appoint- get once eli- act of judges, any ment, until to remain there some undefined such sion which leaves percent of the votes to recall electorate unrepresentative one commission *13 them. interests, act major three leaves these because, say percentage, with I indefinite al- presumptively inconsistent which is though popular the determination elec- legislative the of intent. always has the tion been on the basis of away part The the of Plan that does votes, candidate who the most received and popular judges, with the election of Recalls, is not true of recall referendums. election, obviously substitutes a recall is so another, pitting against not one candidate contrary arrangement in our Consti- the votes, gets are not based on who the most tution, written, people presently as the for upon percentage but in un- fixed the law and right have the both to nominate der which the referendum is The held. is officers, elect their it that constitutional percentage. fix this Constitution does not explain why difficult to it is unconstitu- percentage implied na- by The is not the explain you tional. the How do obvious? popular the as in ture of referendum you point plain All can do is to out the Legislature This the free election. leaves say, clear words the and of Constitution percentage fix the as it chooses. it, “read it”. follow important, potentially trouble- As 6, provides Judges Article of “The § is, majori- nothing as it is in some said the the shall be elected the ty opinion the effect of this about qualified as Judges voters the State”. 7, on the election civil officers. Article contemplated well other civil officers only provides not for election § pro- Constitution are to all judges, for election of 7, vided for Article 5 of our Constitu- § civil referred to Constitu- officers says part in “Elections tion. section 7, Having 5 can mean tion. said Article § for civil shall other officers Judicial popular judges, for no more elections .”, say . goes held . and then on to Legislature can of course that means they that shall be held on first Thurs- elections civil away popular for do expira- in day preceding next Legislature officers. This means respective tion of their service. terms of keep all constitutional constitutionally can This section fixes the Constitution re- until are officers in office civil all day computing for the term office of Leg- percentum the by a vote called officers, judicial clearly state civil islature chooses to fix. contemplates general popular one day be held on the fixed all those for suggest I do hot expire August 31. office whose terms on I as to this. irresponsible so do would be pro- majority in adoption simply point of our first con- out that Ever since offices, agree, 1796, I judges (whose for viding the election of constitu- stitution greatest ex- popu- depoliticalized has should be tional and civil officers been free constitutional people has had to vote, possible), tent lar in elections which requirement provisions pop- senators, (cid:127)civil officers from the and the of Article § election, judges gen- ular and civil for attorneys because offi- the election district eral being way. cers are both dealt with the same article construed the same section, Virtually language for that matter in the the same is used sentence, in each the Constitution. instance. The election that is con- same templated in sections these of the Constitu- for necessary It is not me to dwell on tion is no provided more defined than that consequences possible chaotic So, judges and civil if “elec- officers. placed Article construction on § tions” by qualified voters in Articles not, majority; necessarily, and this then, referendum, and mean a recall point. point by redefining course, it can mean recall referendums in permit Article 5 to and civil of- § providing Articles the election recalled, to remain in until ficers representatives, senators, attorneys district purpose whole and intent Constitu- general, and all civil officers. by popular government elec- tion destroyed. enough say may tions has been that this happen. possible it is fact Tennessee, The Constitution of enough to condemn the Plan. powers govern- declares that the ment shall be into three distinct divided de- say Let me in conclusion that I dissent *14 partments: Legislative, Executive and opinion from the majority for the further 2 of Article declares that no Judicial. that, by turning reason over to Legisla- person persons belonging or to one of say right Supreme ture the to how departments any these shall exercise chosen, Judges shall be this powers properly to either of the belonging place coequal part abdicates its as a our of others, except permitted as the Consti- tripartite government, state and subordi- tution. Legislature. nates itself to the this Of subordination, can there be no doubt. very constitutional gov- existence of protected this Where once the Constitution depends preservation upon ernment of Court, it, preserved take must now arrangement. important so this It is that Legislature. Today its chances with nothing should ever that would im- be done by majority the Plan for recall pair it. only statutory, vote. But so this is what long As as each of these branches of keep the-Legislature providing to from government was answerable alone to the percentage. recall that different For people independence, it could its maintain matter, keep it that saying what is to and thus continue perpetu- inviolate and in a judge approved by affirmative must be ity the grand constitutional scheme. But vote percentage empty of such a will the deadly question now serious that arises serving judges? Bench all presently If is, whether, plan since the constitutional truly power this is within the for election of one these branches of Legislature, nothing this there is to save government by people, plan and the for Court. the election of all peo- civil officers
ple, has been power witnessing held to be within today We are a sad conse- the Legislature, quence both the other branches Su- this subordination this government Because, are in jeopardy. preme Legislature. Court to the Judicial provision if the for the election bill notice can of the fact that a Su- be taken preme Court judges all judges, has been introduced all officers, constitutional repeal civil can be Missouri Plan. Modified But, read requiring only election, a recall may bill that need be defeated. prevent what provisions in in- be the end Another bill can be of it. 2, representatives session, election of after troduced next the session all as infinitum, receiving therefrom so nominees that, ad provided and, by Chapter Acts can be Public possibly, judges, all Judges hat Legislature, kept by the in attendance hand, it suits speak, whenever so to representa- disgruntled some
purpose of CHATTIN, J., and McAMIS WIL- with a snap to attention the Court tives SON, Special Justices, concur. change manner of their election. bill subordination, nothing is. If If is not ON PETITION REHEAR TO political than election is not more not, nothing Have we like people, is. McCANLESS, Justice. equality Esau, birthright, precious sold our Taylor petition Defendant has filed cheap, potage, a mess and freedom for matter of points out decisive rehear. no perpetuated in office? I way to be easy overlooked, argues law fact but matters Box, opened Pandora’s say has this Court improp- were which this defendant insists and, up evils although locked erly decided. immediately, and may surface therein surface, may no there fact never petition rehear “The office of guarantee longer constitutional to mat- to call the the court attention of cannot, case as was the overlooked, things not those ters majority opinion was written. improperly decid- supposes counsel were
ed after full consideration.” West Carr, Tenn. 370 S.W.2d REHEAR OPINION ON PETITION TO [1963], McCANLESS, Justice. petition is denied.
In this cause the Reporter rehear, petition has filed his CHATTIN, J., and and WIL- McAMIS *15 seeking a clarification of the ma- Court’s SON, Special Justices, concur. 1973, jority opinion, filed March insist-
ing opinion that that leaves undetermined DYER, participating. J., not C. the vacancy manner in which existing the on the Court to be filled. This is REHEAR ON PETITION TO opin- understanding correct of our grant We the petition
ion. rehear in to explain order to clarify McCANLESS, this feature of Justice. it. Turley filed an earnest has Defendant miscon- petition to rehear. He insists we We held that no there was election as 17- misapplied T.C.A. strued Section requires the part Constitution for that disagree. 712(2). We began September term that on 1972. vacancy The also held exists. valid We Tur- appointed At the time the Governor Chapter 198 of the Public Acts of 1971 only he could ley mandate by constitutional (Sections inclusive, 17-701 to Ten- of Au- subject to the election appoint him nessee Code under Annotated), statute Constitu- gust 3, Section 1972. authority on the of which vacancies Tennessee. tion of Supreme Court must filled. apply T.C.A. To construe opinion Nothing in intended to our was defendant, by this 17-712(2), as insisted prevent giving no- now appli- an unconstitutional amount to would Nominating Appellate tice to Court of that cation Section. of the vacan- Commission of existence cy by petition Creson denied. the death of caused Justice CHATTIN, J., and off appointing power McAMIS August WIL- on it SON, Special Justices, expressly applies only concur. already to judges appointed office, and serving terms Turley Mr. not in this category. was
DYER, J.,C. not participating. statute reads as follows: HUMPHREYS, (dissenting on Justice “17-712(2). The justices terms of all rehearing). judges appointed under this act shall ex- pire August following the next Au- dissent, maintaining my While agree, I gust general recurring biennial election petition insisted to rehear filed more than thirty days after the va- General, that there is now cancy.” nothing implementation to bar the Plan existing vacancy this language on How power affects the My appoint Court. mind is September satisfied that the Plan after shall never I unconstitutional, but, oper- if we are to understand. Proof that it to be does it, ate under on the found in majority’s opinion, rehear must be filled under appointment it. that now can be made. During argument of this case at
Knoxville, conference, and in expressed I I concurred in the result reached opinion that if Turley majority neither Mr. nor Turley’s appointment that Mr. Taylor office, Mr. was entitled to the ground void on the that this was re- upheld, if the quired Plan to be part would be of Article 5§ Plan, necessary proceed anew under the provides, Constitution which “and such va- principle requir- cancy of functus officio so shall be filled at the next Biennial ing. opinion. I am still of that recurring days thirty more than after occurs.”, not the statute.
Turning to Turley’s petition Mr. re- that, hear : It point however, makes the I compelled concede, inasmuch as am his appointive term did not if commence until the clear mandate of our Constitution September 1, 1972, it could not ex- Judges shall elect- “be pired And, on voters”, as there is qualified ed read can be nothing 17-712(2) nor in authorizing plan under which the provision prohibit qualified of the Plan get voters never elect Su- making date, appointment preme after that Judge, then there is no reason *16 appointment Turley his is Mr. at valid. all not to read 17-712(2) T.C.A. § argues valid, way further that if the gets Plan so the desired result. subject subject whole matter is Judge Taylor’s supplemental original and control legislature, appoint- then his petitions largely to rehear consist of rear- September ment on 1972was valid. gument origi- grounds on which he Plan, Assuming validity nally Mr. agree relied. I could not with them is, Turley course, then, majori- agree correct. The and I cannot with them now. ty opinion original Turley’s its said Mr. Judge has, however, Taylor placed be- because, appointment invalid, “by portions fore the Court of the Constitu- express period 17-712(2) terms of § tional make it Convention appoint which the could him perfectly clear that before the resolution (Mr. expired Turley) already had before Supreme question, whether the Court attempted appointment became effec- qualified should be elected voters tive.” appointed State be are federal debate, perfectly judges, clear from the statute that it there was much that, expressly applying finally instead of to cut was decided that qualified should All voters. discussion summa- Constitution,
rized 3 of the it Judges
where declares “The of the Su-
preme quali- Court shall be elected
fied declaration voters of the State.” This choosing Supreme manner
Judges plain it does so and clear require refer- support by historical
ences, as as these references are. relevant plain ig-
If going to be command
nored, hope dis- there is no reason giving
cussion rise to the command will
noticed.
Hopeless, though offering of the his- was, Taylor
tory placing I thank Mr. Court.
HAMILTON BANK NATIONAL OF KNOXVILLE
Eliza M. ALLRED al. et Appeals Tennessee,
Court of
Eastern Section.
June 1972.
Certiorari Denied June