LaFever v. Ware

• Decision Date: 07 February 1963
• Parties: , 211 Tenn. 393 Andrew J. LaFEVER, et al. v. S. R. WARE, Sr., et al.
• Court: Tennessee Supreme Court

Page 44

365 S.W.2d 44

15 McCanless 393, 211 Tenn. 393

Andrew J. LaFEVER, et al. v. S. R. WARE, Sr., et al.

Supreme Court of Tennessee.

Feb. 7, 1963.

Malcolm C. Hill, Jim Camp, Hugh M. Carmichael, William H. Mitchell, C. C. Geer, Oliver Bradley, S. G. Butler, Richard Lykens, David Snodgrass, Sparta, for appellants.

Foutch & LeFevre, Smithville, for appellees.

WHITE, Justice.

This case is here on appeal from a decree of the Chancellor sustaining certain grounds of the demurrer and holding unconstitutional Section 15 of Chapter 35 of the Private Acts of 1953 and Chapter 283 of the Public Acts of 1961.

The Court decreed that the bill, as amended, was properly filed under the Declaratory Judgments Act and that the record presented a justiciable issue, with which we agree.

The defendant, Ralph Hutson, was nominated in the Democratic Primary in August, 1961, by a majority of one vote, for the office of Judge of the Court of General Sessions of White County, Tennessee. His name was certified as such nominee by the White County Election Commissioners and placed on the official ballot which was used in the General County Election held on August 2, 1962, at which time he was elected to serve as Judge of said Court. Mr. Hutson is not a licensed attorney nor is it contended that he is learned in the law.

Section 4 of said Private Act confers jurisdiction upon the Court, established thereby, concurrent with that of the 'Circuit and Chancery Courts of the State of Tennessee to try and dispose of divorce cases in the same manner and with the same authority as is vested in the Circuit and Chancery Courts of the State of Tennessee, and an appeal from the judgment of this Court in all divorce matters shall be to the Court of Appeals or to the Supreme Court in the same manner as provided in such cases from the Circuit and Chancery Courts'.

Section 18 of said Act provides that the Judge of said Court has authority to interchange with the Circuit Judge and Chancellor, and they with him.

Section 15 of said Act, which was declared unconstitutional by the Chancellor, provides that the Judge of the Court of General Sessions of White County 'shall be a licensed attorney of the State and a resident of the County in which he resides'. (Emphases supplied.)

Chapter 283 of the Public Acts of 1961, being T.C.A. § 17-119, provides:

'In addition to the qualifications provided for judges by article 6, §§ 3 and 4 of the Constitution of Tennessee, judges of the Supreme Court, Court of Appeals, chancery courts, circuit courts, and criminal courts, and courts exercising the jurisdiction imposed in one or more of the last three (3) named courts, shall be learned in the law, which must be evidenced by said judge being authorized to practice law in the courts of Tennessee.' (Emphases supplied.)

The complainants aver that the aforesaid Acts are constitutional and, therefore, Ralph Hutson is ineligible to fill the office of Judge of the Court of General Sessions of White County, Tennessee.

Article 6, Section 4 of the Constitution of Tennessee states:

'The Judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years.'

There is no question that the Court created by said Private Act of 1953, and to which Mr. Hutson has been elected to preside over, is one of the inferior Courts referred to in the above section. Taylor v. Wilson County, 188 Tenn. 39, 41, 216 S.W.2d 717 (1949).

Since said Section 4 is applicable, we then must consider whether or not the Legislature has the power to prescribe qualifications for the office of Judge over and beyond those specifically set out in the Constitution. In other words, are such qualifications as set out in the Constitution the only requirements or shall they be considered as the minimum requirements to which the Legislature may, on a reasonable basis, make some additions.

It could be argued that the Legislature retains full power to prescribe qualifications for the office so long as they are not squarely in conflict with the conditions enumerated in said Section 4. It might be also argued with some plausibility that the conditions enumerated are exclusive and that the Legislature may never restrict the privilege of holding a judicial office beyond the conditions so enumerated.

Finally, it might be argued that the proper interpretation of said section lies between these two extremes; that is, that the conditions imposed by the Constitution are the minimum requirements rather than the exclusive requirements. If this be true, then may the Legislature properly prescribe additional conditions which meet the test of reasonableness.

Commencing with the Public Acts of 1870 our Legislature has made various provisions for the appointment of Judges by the Governor to fill a vacancy in the office of Judge by death, or resignation, or by sickness or incompetency. Such Acts now appear in the official code of Tennessee as follows:

T.C.A. § 17-112 provides that when a vacancy occurs in the office of Circuit Judge, Chancellor, or Special Court of equal dignity or above his successor shall be selected by the voters at the next biennial election in August occurring more than thirty (30) days after such vacancy, and in the meantime the Governor shall appoint a person 'learned in the law' and constitutionally qualified to discharge the duties of such office until such election can be had.

T.C.A. § 17-115 provides for the appointment by the Governor of some person 'learned in the law' to fill a vacancy in the office of County Judge under the conditions therein set out.

T.C.A. § 17-202 provides that upon certification of the incompetency of one or more of the Judges of the Supreme Court the Governor shall appoint the 'requisite number of competent lawyers' to dispose of said causes.

T.C.A. § 17-204 provides that in case of sickness of any one or more of the Judges of the Supreme Court, the Governor shall have the power to commission persons 'learned in the law' to fill the vacancy during the illness of said Judge or Judges.

T.C.A. § 17-221 provides that in the event of the incompetency of any Judge named therein the Governor shall appoint some person 'learned in the law' to hold said Court or try said cause or causes in which said Judge certifies his incompetency.

T.C.A. § 17-222 provides that when any Judge named therein certifies his inability to hold his Court because of sickness or other physical disability, etc., the Governor shall commission some 'competent lawyer' to attend and hold said Court during the absence of any such Judge.

Therefore, it is obvious that the Legislature has always considered that it had the authority to prescribe additional qualifications to the holders of judicial office to those specifically set out in the Constitution.

This Court has upheld various statutes, T.C.A. §§ 17-214, 17-215, 17-225 which provide for the election of Special Judges from among 'members of the Bar'. See Radford Trust Company v. East Tennessee Lumber Company, 92 Tenn. 126, 21 S.W. 329 (1893); Brogan v. Savage, 37 Tenn. 689 (1858); Ligan v. State, 50 Tenn. 159 (1871).

The Court in Kivett v. Mason, 185 Tenn. 558, 206 S.W.2d 789, and in other cases, gave its approval to the use of the words 'learned in the law' in the description of persons eligible to hold judicial office. In Heard v. Moore, 154 Tenn. 566, page 572, 290 S.W. 15, page 17, 50 A.L.R. 1152 (1926) it was held: 'The Legislature could have as well used the words 'licensed attorney,' if it were intended that the county judge should be such, and thus have made the requirement certain and unquestionable.' Nevertheless, while technically the insertion of the phrase 'learned in the law' does not add to the qualifications required of a candidate, these were the words absent from Article 6, Section 4; while words of similar import are used in Article 6, Section 11, viz.: 'Men of law knowledge.' Unless the phrase in Article 6, Section 11 is to be considered as mere surplusage the decision of this Court approving statutes employing this language must be regarded as militating against the second view set out above.

Moreover, while the responsibility for determining the meaning of the Constitution of this State rests in the last analysis with the judiciary, our Court has always given careful consideration to the interpretation placed on the Constitution by the legislative branch of the government. Derryberry v. State Board of Election Commissioners, 150 Tenn. 525, 266 S.W. 102 (1924).

Construction of the constitution adopted by the legislative department and long accepted and acquiesced in by the people is entitled to great weight, and in the absence of some showing of palpable error, is to be accepted as a correct interpretation. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491. (Case cited and approved therein) Cooley's Constitutional Limitations, page 531; State ex rel. Coleman v. Campbell, 3 Tenn. Cases 355; State ex rel. v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151.

The history of the judiciary of Tennessee, as reflected in the statutory laws, customs and accepted practices for more than 100 years, recognizing only 'lawyers', 'attorneys' and those 'licensed and authorized to practice law' as eligible to election or appointment to the Appellate Courts, Circuit Courts, Chancery Courts, Criminal Courts is to be given great weight in determining the constitutionality of any Act involving the judiciary. Constitutions are to be construed with reference to well known practices and usages.

The statutes now under consideration were enacted subsequent to the decision in Kivett v. Mason, thus...