34 Tenn. 50 | Tenn. | 1854
Lead Opinion
delivered tbe opinion of tbe court.
This was a proceeding instituted by Wade under tbe act of 1854, cb. 32, sec. 12, to contest tbe election of Murry to tbe office of attorney general for tbe fourth judicial circuit.
On tbe 9tb of June, 1854, Wade presented a ‘Worn statement of tbe ground of contest to tbe chancellor of tbe division in which said election was held.”
Tbe chancellor, in pursuance of tbe directions of tbe statute, appointed tbe 17th of July for tbe trial, at Carthage. Murry was served with a copy of tbe “statement,” and notified of tbe time and place of trial, as required by tbe statute.
It appears that sometime before tbe day fixed for said trial, chancellor Ridley, tbe presiding chancellor of that division, certified to tbe Governor,, that, from “physical disability,” be would be unable “to bold tbe next terms • of tbe chancery court at La Fayette, Gains-boro, and a case of contested election for attorney general, at Carthage, on tbe 17th day of July next.” Whereupon, tbe Governor, on tbe 6th day of July, appointed and commissioned Samuel M. Fite, Esq., “special chancellor to bold said terms of said court at La-Fayette, Gainsboro, and Carthage,” &c.
Tbe trial took place before tbe special chancellor on tbe day appointed, and tbe election of Murry was declared illegal and void, on tbe ground that tbe sheriff of Smith county bad failed to open and bold an elec
At the November term of the circuit court of Smith, Murry presented his petition, in open court, setting forth the entire proceedings had before the chancellor on the trial of said contested election, and praying the court to grant him a certiorari to remove the proceedings into said circuit court. The petition shows that an appeal in error to the supreme court had been prayed and granted, from the decision of the chancellor, but ' stated, that as doubts had been suggested whether the appeal would lie in such a case, it was deemed proper to apply for a certiorari to remove the case into the circuit court, so that if the petitioner failed in the mode first adopted, he might, in the latter mode, obtain a revision and reversal of the chancellor’s decision, which is alleged to be erroneous. The circuit judge declined to entertain jurisdiction of the matter, and refused to grant the prayer of the petition, and from this refusal of the court, Murry also prosecuted an appeal in error to this court. The two cases were submitted together, and the questions properly arising in both, will be considered.
And, first, will an appeal in error lie from the chancellor’s decision?
The statute confers no jurisdiction upon the court of chanceiy. By the proper construction of the statute, a special tribunal is created for the trial of contested elections ■ held under its provisions, of which the person holding the office of chancellor for the division in which the contest may arise, is constituted the judge. This tribunal may not improperly be called a court/ but in its organization and mode of procedure, it is very unlike a. court of chancery. The proceedings are not of record; it is merely, required that a certified copy of the decision showing the ground thereof, shall be sent to the Governor. The proceeding is commenced, not in the regular form of a bill or petition, but by the presentation to the chancellor of a mere “sworn statement of the grounds of contest.” No process is required to be issued. The chancellor is to appoint a “day of trial,” not less than thirty nor more than fifty days from the day of such presentation; and a place of trial, at some point within the circuit in which such election was held;” and a copy of such “statement,” with the day and place of trial endorsed thereon is to '.be served on ■ the person whose election is contested,
Anri, in the next place, we think it equally clear, that the omission to provide any mode by which the chancellor’s decision, „ upon the merits of the contest might be brought under revision, was an intentional omission. The legislature obviously intended, and perhaps for very sufficient reasons, to make the decision final and ■ conclusive upon the parties. And that it was competent to the legislature to deny to the parties the right to have a re-examination of the chancellor’s decision, in our opinion, admits of no doubt.
' The schedule to the amendments of the constitution provides, that the election of judges and attorneys for the State, shall “be held and made under a'law to be passed by the general assembly,” &c. In the execution of this power, and as incidental thereto, the • legislature, in order to guard against the corruption and palpable irregularities sometimes attending popular elections, wisely provided a tribunal to which an appeal might be made from the decision at the ballot box, and invested it with the power to declare the election void, for any sufficient cause. This tribunal was so constituted as reasonably to justify the presumption that its decisions would do equal and impartial justice according to the law of the land, and therefore ought to be satisfactory to the parties: And no doubt the framers of the law thought it better that an erroneous de-
The next question is: can the writ, of certiorari be resorted to upon any ground disclosed in the petition? We think not. It is true, that this tribunal, created by the act of 1854, is an inferior .jurisdiction, in the moaning of our constitution and laws: and it is equally true, that the certiorari is the appropriate method by which the circuit court, as a court of general jurisdiction, exercises control over all inferior tribunals. But it would be contradictory to hold, that a writ of error proper would not lie, and yet that the certiorari as a substitute for the writ of error, might be maintained: and it would be no less contradictory or absurd to hold, that a decision intended to fie final and conclusive, could be reviewed in any mode whatever.
We do not mean to say, however, that the certio-rari might not be resorted to, for some purposes, in a case like the present: we think it might. In a case involving a question as to the legal competency of the judge; or showing such a substantial departure from the course of proceeding prescribed in the statute, as would render the proceedings void, the certiorari would be the proper remedy. ‘ If, for example, it were correct, as was suggested in the present case, that the jurisdiction
Assuming the position, as we do, that if the proceedings be regular, and in substantial conformity with the requirements of the statute, the decision of the chancellor cannot be re-examined with a view to the question, whether its conclusions, as to the law or facts are correct; and no material irregularities intervened in the course of proceeding in this case, we are of opinion that the application for a certiorari cannot be sustained.
The merits of this case not being open to examination before us, we avoid any intimation of our opinion as to the correctness of the chancellor’s decision.
The result is, that the appeal in error must be dismissed, and the judgment of the circuit court, refusing the certiorari-, affirmed.
Concurrence Opinion
concurs, except that be is of opinion
that the revisory jurisdiction of the circuit court to be exercised by the writ of certiora/ri, is too much limited and restricted by the opinion. The revisory jurisdiction extends, as he thinks, to any question of error or illegality in the proceeding which has the effect to prejudice the rights of a party. The person legally entitled to the office by a valid election, has a property in it, and it is not competent under the constitution, for the legislature to deny a judicial remedy, or to deny the power of the superior courts, to revise the action of the special court, established for the trial of contested elections. He would therefore extend the revisory jurisdiction further than it seems to go, in the opinion of the majority of the court.