Brewer v. Davis
| Decision Date | 30 September 1848 |
| Citation | 28 Tenn. 208 |
| Parties | BREWER v. DAVIS. |
| Court | Tennessee Supreme Court |
Under certain acts of the general assembly (which are set forth in the opinion of the court), by which the county of Hancock was organized, Brewer was elected clerk of the circuit court on the 3d day of December, 1846. On the 4th day of March, 1848, an election was held for clerk in supposed accordance with the requirements of the act of 1835, ch. 2, when Davis was elected clerk by the qualified voters. Davis made application to the court (Lucky, J.,) to be inducted into office. Brewer opposed the application on the ground that he was lawfullly elected for the period of four years, a portion of which had not expired.
The judge was of the opinion that Davis was entitled to the office, and so ordered.
Brewer appealed.
W. R. Evans, for plaintiff in error. The plaintiff in error was elected by the people, and took the oaths, and gave the bonds required by law; and he claims the office for four years from his election under the Constitution, which provides for the election of clerks by the people. There is no clause in the Constitution by which a clerk elected by the people can be restricted to a less term; and any provision by the legislature providing for the election of a clerk by the people for a less term than four years, either in organizing a new county or otherwise, cannot take away the right of the party so elected to his office for the constitutional period of time. Nor can the provisions of the act of 1835, requiring generally that elections for county officers shall be held on the first Saturday in March, every two years, affect the question or the rights of the person so elected. The Constitution does not require such elections to be held on the same day in every county; and the laws providing for the organization of the county of Hancock fix other days and times for holding elections for county officers, and when so elected said officers are entitled, under the Constitution, to their full term, notwithstanding the particular act would restrict the party to a less term.
Rogan, for defendant in error. It is contended by the counsel for Brewer that, being elected, he is entitled to hold his office, according to the provisions of our Constitution, for four years. I am aware that the Constitution so provides; but does not that instrument contemplate regular elections? Here is a new county created, and the election held in December. The two legislatures which passed the act and amended act for establishing Hancock also passed bills forming some eight or nine other new counties. Now, suppose each of these counties have their elections in different months; and suppose, as county officers die, others are elected by the people whenever such deaths occur, what will be the result? Why, we may soon have an election for circuit-court clerk nearly every third day in the year; for I believe we have nearly one hundred counties in our state, and when you come to add to this county-court clerks registers, trustees, sheriffs, etc., it is not at all impossible but that we may have a county election six days in every week of the year some place in our state. To this, it seems to me, the argument adduced on the other side does lead; for, if Hancock may elect the first Monday in December, surely Grundy may elect the second Tuesday in January. Can it be that the framers of our Constitution could have ever tolerated the idea of such confusion? Certainly they intended that the elections should come off every place in the state on the same day, and that the officers then elected should hold their offices for the specified time. This would produce no confusion.
In this case we have the legislature expressly providing that the officers elected in Hancock should hold their offices “until the next general election (March, 1848), and no longer.” Martiel Brewer, the appellant in this case, had this act before him when he became a candidate for the office of clerk of the circuit court, for he was one of the commissioners appointed to organize the county, and his intention must have been only to present himself before the people as a candidate for that period only that intervened between December, 1846, and March, 1848, and the peoople could only have voted for him for that term; and his becoming a candidate for re-election in March, 1848, further justifies us in this belief. Surely Mr. Brewer did not suppose he would hold his office until December, 1850, and that, ever after, December would be the month for holding the elections in the county of Hancock.
But suppose Mr. Brewer is the lawful clerk, in what condition will it place Hancock county? The old sheriff was defeated; the new sheriff is no legal officer, and every one of his official acts are null and void. The new magistrates are illegally commissioned, and persons have been committed to jail without law, fines have been imposed and collected by those who have no power to administer justice or collect fines, and...
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