Hodge v. State

• Decision Date: 17 August 1916
• Parties: HODGE v. STATE.
• Court: Tennessee Supreme Court

188 S.W. 203

135 Tenn. 525

HODGE v. STATE.

Supreme Court of Tennessee.

August 17, 1916

Appeal from Criminal Court, Dyer County; W. A. Fowlkes, Jr., Judge.

John Hodge was convicted of assault and battery, and he appeals. Affirmed.

Coover & Ward, of Dyersburg, for appellant.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

BUCHANAN J.

One question presented by this appeal is the constitutionality of chapter 78, Acts of 1915 (see page 239 of Private Acts of that year). Plaintiff in error was convicted of the offense of assault and battery after a trial in the court which the act purports to establish. No bill of exceptions appears in the transcript, and no question is made on the sufficiency of the evidence to sustain the judgment.

Upon the question first above suggested, it is insisted that the General Assembly went beyond the power vested in it by the Constitution when it enacted sections 1 and 2 of the act. Section 1 established a criminal court at Dyersburg in the county of Dyer and conferred on the court jurisdiction coextensive with the limits of said county, and section 2 prescribed the character of cases falling within the jurisdiction of the court.

The first section of the sixth article of the Constitution of this state declares, that:

"The judicial power of this state shall be vested in one Supreme Court, and in such circuit, chancery, and other inferior courts as the Legislature shall, from time to time ordain and establish, in the judges thereof, and in justices of the peace. The Legislature may also vest such jurisdiction in corporation courts as may be deemed necessary; courts to be holden by justices of the peace may also be established." The court which section 1 of the act purports to create is an inferior court within the meaning of the above excerpt from the Constitution. It is inferior to the Supreme Court in the same sense that circuit and chancery courts are inferior. The Constitution in section 1, art. 6, provides for "one Supreme Court" and to distinguish that court from the courts next immediately mentioned; they are classed as inferior courts. The criminal court of Dyer county clearly falls within the classification "other inferior courts," and these courts, when ordained and established by legislative act, are the direct fruits of power conferred by said section of the Constitution on the legislative department of the state. In so holding we announce no new doctrine. See Granville Wilcox v. State, 50 Tenn. (3 Heisk.) 110; also marginal reference to the case of Gray v. State, 50 Tenn. 113; Moore v. State, 37 Tenn. (5 Sneed) 512; McClain v. State, 1 Shan. Cas. 480; Ellis v. State, 92 Tenn. (8 Pick.) 85, 20 S.W. 500.

For cases shedding light on the question, see Re-districting Cases, 111 Tenn. (3 Cates) 234, 80 S.W. 750; Judges' Cases, 102 Tenn. (18 Pick.) 510, 53 S.W. 134; Railroad v. Byrne, 119 Tenn. (11 Cates) 278, 104 S.W. 460; State v. Lindsay, 103 Tenn. (19 Pick.) 625, 53 S.W. 950; Coleman v. Campbell, 3 Shan. Cas. 355; Halsey v. Gaines, 70 Tenn. (2 Lea) 316; Shelby County v. Judges, 3 Shan. Cas. 525; Hurt v. Hurt, 70 Tenn. (2 Lea) 177; Miller v. Conlee, 37 Tenn. (5 Sneed) 432; Ward v. Thomas, 42 Tenn. (2 Cold.) 565; State v. Wilson, 70 Tenn. (2 Lea) 211.

In Ellis v. State, supra, it was said:

"The power of the Legislature to establish special courts, under section 1, art. 6, of the Constitution, is well established, and is not denied in this case" (citing some of the authorities).

The brief for appellant relies on Bank of the State v. Charles Cooper et al., 10 Tenn. (2 Yerg.) 599, 24 Am. Dec. 517 (appendix). In that case, the constitutionality of chapter 95 of the Acts of 1829-30, was involved. Chapter 95 purported to create a special court to be holden at Nashville, and to consist of Jacob Peck, one of the judges of the Supreme Court, Nathan Green, one of the chancellors of this state, and William E. Kennedy, one of the judges of the circuit court, and to confer certain special jurisdiction upon such court. The bank, by its bill, invoked the judgment of said special court against Cooper upon the claim that he was indebted to it in a certain sum, and Cooper pleaded to the jurisdiction of the court. Each of the three judges named rendered an opinion holding the act to be in violation of the Constitution of the state then in force; that is to say, the Constitution of 1796.

Section 1, art. 5, of that instrument provided that:

"The judicial power of the state shall be vested in such Supreme and inferior courts of law and equity as the Legislature shall, from time to time, direct and establish."

The opinion of Judge Green held that:

"It would be perfectly competent for the Legislature to abolish the Supreme Court, and take away the right of appeal from the county to the circuit court. Each would then exercise its own peculiar jurisdiction, and be supreme within its sphere of action."

The excerpt from the opinion followed a holding therein that there then existed no constitutional guaranty of the right of appeal, that right existing only under the statute.

We need not consider the particular grounds on which each of the three judges held the act unconstitutional. Suffice it to say, when properly understood, the case is no support for the insistence of appellant which is now under consideration. The opinion of Judge Green shows that he thought the legislative department, under the Constitution then existing, was clothed with a much broader power in respect of the abolishment and creation of courts than that power which was exercised in the passage of the act of which appellant complains.

It is to be remembered that Bank of the State v. Cooper was decided in 1831. In 1834 a new Constitution was adopted, and by section 1, article 6 thereof, it was declared:

"The judicial power of this state shall be vested in one Supreme Court, in such inferior courts as the Legislature shall, from time to time ordain and establish, and the judges thereof, and in justices of the peace the Legislature may also vest such jurisdiction as may be deemed necessary in corporation courts."

This provision was, in turn, supplanted by section 1, article 6 of the Constitution of 1870, set out earlier in this opinion.

By the changes noted in the fundamental law, it is undoubtedly true that some of the breadth of legislative power so clearly expressed by Judge Green in Bank of the State v. Cooper, supra, was shorn away, as may be seen by examination of the opinion of the court delivered by its present Chief Justice in the Re-districting Case in 111 Tenn. (3 Cates) 234, 80 S.W. 750. See, also, the majority opinions in the Judges' Cases, 102 Tenn. (18 Pick.) 510, 53 S.W. 134.

In the case last mentioned the opinion of Judge Wilkes, commenting on the Constitution of 1870 (article 6, § 1), says:

"It is evident from the provisions of the Constitution that but few limitations were intended to be placed upon the power of the Legislature to create, establish, and change inferior courts. Limiting safeguards were placed around the Supreme Court, to protect it both from legislative and executive control, which were not placed around the inferior courts. It was provided there should be but one Supreme Court, so that its powers and prerogatives could not be lessened by being divided; the number of judges was fixed, so that it could

neither be increased nor diminished; the places of holding its courts were fixed, so that they could not be changed. None of these limitations were thrown around the inferior courts. The number of courts, the number of judges, and the places of holding these courts were left to be determined by the Legislature," etc.

In Bank of the State v. Cooper, Judge Green said:

"Nor can it be seen that it was intended to restrict legislation to the creation of such courts as should be appealed from, and therefore, 'inferior,' and an appellate court, which would be therefore, 'superior.' "

This statement was true as applied to the Constitution of 1796 of which Judge Green was speaking, but such a statement cannot be truly made of the Constitution of 1834 or that of 1870, by each of which it is provided, in section 2, art. 6, speaking of the Supreme Court, that:

"The jurisdiction of this court shall be appellate only, under such restrictions and regulations as may, from time to time, be prescribed by law; but it may possess such other jurisdiction as is now conferred by law on the present Supreme Court."

Thus was there stamped on the Supreme Court the distinctive character of an appellate and consequently a superior tribunal, and in which, by the first section of article 6 of the Constitutions of 1834 and 1870, such part of the judicial power of the state was vested as was needful for the exercise of the jurisdiction conferred. Manifestly, when one court is by the Constitution of 1870 designated as "Supreme" and vested with power and jurisdiction as aforesaid, the words, "such circuit, chancery and other inferior courts as the Legislature shall, from time to time, ordain and establish," amount to a classification of each and all of the courts last named as "inferior," and by force of the words used, these inferior courts are clearly within the power conferred on the Legislature to "ordain and establish."

Section 8, art. 6, of the Constitution of 1870 is:

"The jurisdiction of the circuit, chancery, and other inferior courts, shall be as now established by law, until changed by the Legislature."

This section has been held to be--

"a reservation of power to alter the jurisdiction of the courts established, and as a matter of course to enlarge or diminish, or else there could be no alteration." Jackson v. Nimmo, 71 Tenn. (3 Lea) 598.

See also, Kelly v. Conner, 122 Tenn. (14 Cates) 339,...