Beaver v. Hall

• Decision Date: 19 January 1920
• Citation: 217 S.W. 649,142 Tenn. 416
• Parties: BEAVER, SHERIFF, v. HALL ET AL.
• Court: Tennessee Supreme Court

217 S.W. 649

142 Tenn. 416

BEAVER, SHERIFF, v. HALL ET AL.

Supreme Court of Tennessee.

January 19, 1920

Error to Probate Court, Shelby County; Jacob S. Galloway, Judge.

Petition for writ of habeas corpus by Arthur Hall and others against Monroe Beaver, Sheriff. Relators discharged, and defendant brings error. Reversed.

Sherrod Smith and L. E. Gwinn, both of Covington, for plaintiff in error.

Tipton & Tipton, of Covington, for defendants in error.

McKINNEY J.

The relators in this case were indicted, tried, and convicted in the criminal court of Tipton county, Tenn., for transporting and selling intoxicating liquor.

Said court was created by chapter 563 of the Private Acts of 1917. By said act the Criminal Court of Tipton county was given the exclusive jurisdiction of misdemeanor cases in said county.

The relators were tried in said court by a jury upon pleas of not guilty, and after conviction made the usual motions for a new trial and in arrest of judgment. These were overruled, and an appeal taken to the Supreme Court, which court affirmed the judgments of the criminal court, and the relators were committed to the county workhouse of said county to work out their sentence.

The office of county judge for said county was created by chapter 289 of the Acts of 1905. This act was amended by chapter 607 of the Private Acts of 1911 so as to increase the jurisdiction of the county judge; that act authorizing him to try divorce cases and to hear and determine certain misdemeanor cases transferred by consent from the circuit court of said county to its county court.

By said chapter 563 of the Acts of 1917 the Legislature undertook to create a criminal court for Tipton county with exclusive jurisdiction of misdemeanor cases, and the county judge was made ex officio judge of said criminal court.

Subsequent to their conviction and sentence in said criminal court the relators herein filed a habeas corpus petition before the probate judge of Shelby county, and were by him discharged from custody on the ground that said chapter 563 of the Acts of 1917 was unconstitutional, and that all proceedings thereunder or by the court organized pursuant thereto were a nullity. From that judgment the defendant, J. M. Beaver sheriff of Tipton county, has appealed and assigned errors.

In the case of State of Tennessee v. Clint Tipton, 220 S.W ___, from said criminal court of Tipton county, we have just held that the act creating said court was unconstitutional for the reason that it imposed an Attorney General's tax of $10 upon each convicted defendant, a burden not borne by defendants convicted of like offenses in the other 95 counties of the state (the general statute fixing such fee at $5), and that said act was therefore partial and discriminatory.

It is insisted by the plaintiff in error that, notwithstanding the unconstitutionality of said act, the relators cannot raise that question in this proceeding, because said criminal court was at least a de facto court, and that the relators by going to trial in said court upon pleas of not guilty and by appealing their cases from that court to the Supreme Court without objecting at any stage of the proceedings to either the validity of the indictment or the jurisdiction of the criminal court are bound by such proceedings, and cannot challenge in a collateral proceeding the constitutionality of the act under which said court was organized, and are estopped from assailing the legality of the judgment rendered against them.

The relators take issue on this proposition, and insist that the act creating said court was void ab initio, and that therefore every step taken in the case was an absolute nullity; in other words, it is insisted by the plaintiff in error that the defendants were tried and convicted in a de facto court, and that said proceedings are valid and binding on the relators.

On the other hand, the relators insist that there is no such thing as a de facto court, and that the proceedings in said criminal court were an absolute nullity.

This raises a question which this court has not directly passed upon, and one upon which courts of other jurisdictions are very much at variance. Learned counsel for both sides have cited several Tennessee authorities, all of which we have carefully examined, but we find that none of them deal with the exact question here involved. Most of the cases cited from other jurisdictions do not involve the exact question which we have under consideration in this case, but counsel take the position that the principle is the same as that involving the validity of the acts of de facto officers. Counsel for the plaintiff in error take the position that there may be an officer de facto where there is no office de jure. On the other hand, counsel for the relators insist that there can be no de facto officer where no de jure office exists, and, while this is not the exact question that we have for decision, we will also refer to these cases for the light they throw upon the subject.

The leading case supporting the relator's contention is that of Norton v. Shelby County, 118 U.S. 425, 6 S.Ct 1121, 30 L.Ed. 176. In that case the court, speaking through Mr. Justice Field, said:

"But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the Supreme Court of the state. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers.

The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law. This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however invalid. Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."

Another case especially relied upon by the relators and one very much in point is In re Norton, 64 Kan. 845, 68 P. 639, 91 Am. St. Rep. 257. In that case the court says:

"While it is admitted by the respondent that the court of common pleas had no legal existence, it is contended that it was recognized by the chief executive in appointing a judge therefor, by the sheriffs of both counties, who served its processes, and by the people, who elected a judge in 1899 to preside over it, and as such court it tried many cases, and was in operation for several months, and was therefore a de facto court, and its judgment conclusive and unimpeachable. The argument is that the same reasoning and necessity that demand and obtain recognition by courts of the acts of de facto officers demand in this instance the recognition of the court of common pleas as a de facto court. We cannot accede to this. While there is some authority for this conclusion, and while cases may arise where it would be proper so to hold, yet mere form or color of an office should not be permitted to stand between a citizen and his liberty. There must be a reality in the existence of the court that undertakes to deprive one of liberty. In all cases where the acts of de facto officers have been upheld, there existed a de jure office. The strongest reasoning why the acts of de facto officers are sustained is that the office is created by the public and put in operation as part of the system of organized society, and a continued administration of the office becomes necessary to the proper adjustment of its affairs and to the perpetuity of the system. This reasoning loses force when we undertake to apply it to a de facto office. Such office, not having been created by the public and not having been adopted into the organized system, never becomes a part of it, and its

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