88 Tenn. 753 | Tenn. | 1890
The bill charges that defendant was elected Judge of the Criminal Court of Shelby County on August 5, 1886, and was commissioned by the G-overnor, took the prescribed oath, and entered upon the discharge of the duties of the office; “that said DuBose was engaged, whilst he was a citizen of the State of Tennessee, as a second in a duel since the adoption of the Constitutions of 1885 and 1870; that in the month of June, 1870, a dispute arose between James Briz-zolari and George K. Phelan, who were both then citizens of Shelby County, Tennessee, and which
There is no charge that he aided, abetted, or encouraged the combatants in this State, nor that he acted as second or carried a challenge in this State. There is not so much as an intimation that he knew of, or even suspected, while in the State, a challenge or intended challenge. So far as the bill discloses (and we must be governed by that), his first knowledge of hostility between the combatants was acquired on the battle-field in a sister State.
The prayer of the bill is “that 'said DuBose'be adjudged not entitled to fill or hold said office of Judge; that it be adjudged that he has held, and now holds, said office unlawfully; that he has usurped, and is now usurping, unlawfully, the office; that he be removed from the same, and enjoined from exercising any of the powers, or receiving the profits connected therewith,” etc.
The complaint made and relief sought are based on Section 8 of Article IX. of the Constitution of
“ 1. Whenever any person unlawfully holds or exercises any public office or franchise within this State, or any office in any corporation created by the laws of this State.”
“ § 4161. When a defendant, whether a natural person or a corporation, is adjudged guilty of usurping, unlawfully holding or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that he pay the costs.”
Returning to the clause of the Constitution, and admitting the allegations of the bill to be true, is the defendant obnoxious to the charge of its violation? We think not. He did not bear, send, or accept a challenge in the State; he did not aid or abet in fighting a duel in the State; he had nothing whatever to do with a duel, its preparations, or ceremonials, in the State; and from the
The Convention ordaining and the people adopting the Constitution must be presumed to have intended to regulate and govern the conduct of those within the State. If there were any doubt of such purpose and intention, that doubt is removed . by the closing paragraph of the article cited, to wit: “And shall be punished otherwise in such manner as the Legislature may prescribe.”
Of course the Convention did not undertake to clothe the Legislature with authority to punish for an offense committed in a sister State or a foreign land. Construing. the article as a whole, we conclude the offense specified is limited by the delegation of authority to punish. Each State necessarily has the exclusive jurisdiction to try and punish offenders within its territory. To fight a duel, to aid and abet in one, to give or bear a challenge in Arkansas, is no offense against the laws of Tennessee. Of course, any of these acts inaugurated and participated in in this State, to be consummated in another, is a violation of our Constitution and laws, and the person so violating is amenable thereto.
For the reasons given, the decree of the Chancellor dismissing the bill is correct, and will be affirmed.