McCulley v. State

• Decision Date: 29 August 1899
• Citation: 53 S.W. 134
• Parties: McCULLEY v. STATE. THORNTON v. STATE ex rel. MINOR.
• Court: Tennessee Supreme Court

53 S.W. 134

McCULLEY v. STATE.

THORNTON v. STATE ex rel. MINOR.

Supreme Court of Tennessee.

August 29, 1899.

Error to criminal court, Henderson county; John M. Taylor, Judge.

Criminal prosecution of Dick McCulley for the offense of selling liquor to a minor. From a judgment of conviction, defendant brings error. Affirmed.

Suit by the state, on the relation of H. D. Minor, against Lee Thornton. From the judgment, defendant appeals. Affirmed.

Barham & Timberlake, for plaintiff in error. E. L. Bullock, C. G. Bond, W. G. Timberlake, W. M. Taylor, McCall & Lancaster, F. M. Davis, and D. E. Scott, for the State.

McALISTER, J.

The plaintiff in error was convicted in the criminal court of Henderson county of the offense of selling liquor to a minor, and from said judgment has appealed in error.

The main assignment arises upon the action of the trial judge in overruling the defendant's plea to the jurisdiction of the court. The plea averred that the Honorable John M. Taylor, who was assuming to preside and hold said court, was not judge of the criminal court of the Eleventh judicial circuit, nor judge of any court in the state of Tennessee, for the reason that on the 20th of April, 1899, the general assembly of the state of Tennessee adopted a resolution, two-thirds of the members of each branch concurring, which resolution was on the 21st of April, 1899, approved by the governor, removing the Honorable John M. Taylor from said office, in accordance with the authority conferred by section 6, art. 6, of the state constitution. The plea then recites the proceedings of the legislature which resulted in the removal of Judge Taylor. The cause for removal recited in the resolution is that there is not sufficient business to require or justify the retention in office of said official, and that it is necessary for the welfare of the state that the judicial circuits and chancery divisions should be redistricted, and that there should be a reduction in the number of circuit judges, chancellors, and attorneys general, to the end that there may be a reduction in the judicial expenses of the state, and for the promotion of economy in the administration of public justice. No reason personal to the judge was assigned as cause for removal, but, on the contrary, the resolution contains a testimonial to the "eminent ability, fidelity, and purity in public and private life of said Jno. M. Taylor." The plea to the jurisdiction was, on motion of the attorney general, stricken from the files; and thereupon the defendant was placed on trial, convicted by a jury, and fined by the court the sum of $10. The verdict of the jury is fully supported by the evidence, and the only question presented for our determination upon the record is whether the court had jurisdiction of the case. It should be remarked that prior to the adoption of the removal resolution the general assembly had passed an act repealing the act creating the criminal court of the Eleventh judicial circuit and abolishing said court, but the repealing act was expressly limited not to take effect until the expiration of 30 days from the final adjournment. At the time the case now under consideration was tried in the lower court, to wit, on the 7th day of May, 1899, the abolishing and repealing act approved April 6, 1899, had not taken effect, and hence no question is presented upon this record in respect of the right of the legislature to abolish the court. It is further to be observed that when the removal resolution was approved, to wit, on April 21, 1899, the abolishing and repealing act had not taken effect. That act, as already stated, did not take effect until 30 days after the final adjournment of the legislature. Precisely formulated, then, the question for our determination upon this record is whether, upon a proper construction of article 6, § 6, of the state constitution, the legislature is empowered, for economic reasons, to remove a judge whose office is still in existence. If the act abolishing the court had already taken effect, and afterwards the removal resolution had been adopted, a different question would arise. In such case the whole question would turn upon the power of the legislature to abolish the court, for, if such power existed, the judge would thereby be displaced, and a removal resolution would be useless and supererogant. It would seem a legislative solecism to resolve to remove a judge from an office which had already been abolished and had no existence. The present case, however, must be adjudged upon the state of the law as it stood at the date of the trial below; and, as we have already seen, the act abolishing the court had not then taken effect, and the jurisdiction of the judge was challenged alone upon the ground of his removal from office. The question, then, is whether the legislature is clothed with authority under the constitution to remove a judge from office for economic reasons purely. The authority is claimed to be derived from article 6, § 6, Const. 1870, which provides, viz.: "Judges and attorneys for the state may be removed from office by a concurrent vote of both houses of the general assembly, each house voting separately, but two thirds of the members to which each house may be entitled must concur in such vote. The vote shall be determined by ayes and noes, and the names of the members voting for or against the judge or attorney for the state together with the cause or causes of removal shall be entered on the journal of each house respectively. The judge or attorney for the state against whom the legislature may be about to proceed shall receive notice thereof accompanied with copy of causes alleged for his removal at least ten days before the day on which either house of the general assembly shall act thereupon." Article 5, § 4, provides for impeachment of judges for crimes committed in their official capacity.

In support of the action of the general assembly it is insisted by the attorney general: First, that, under this article and section of the constitution, judges and attorneys general may be summarily removed for any cause that the two houses of the general assembly may deem sufficient; second, that the two houses are exclusive and final judges of the sufficiency of the cause for removal, and the courts cannot revise or annul their action; third, that it is a sufficient cause for removal that an office is useless and the salary an unnecessary public burden. These propositions thus formulated by the attorney general have been re-enforced with an argument evincing much ability and research. Antagonizing the views of the attorney general, it is insisted that the legislature had no power under article 6, § 6, of the constitution to remove a judge, excepting for causes personal to the judge or his administration of the office, and that the removal of a judge upon economic grounds is void. It is insisted that the removal clause of the constitution was designed to cover cases of incompetency, mental or physical disability, continued neglect of official duty, misconduct in office, or other causes which would not constitute impeachable crimes, but would nevertheless be proper grounds for removal. It is further insisted that, if the theory of the state is sound, the constitutional tenure of office is subject to abbreviation or destruction at the will of two-thirds of the members of the legislature, exercised for any cause they may deem sufficient for removal, whether founded on economy, politics, religion, race, policy, or expediency; thus discrowning absolutely the independence of the judiciary. On the other hand, in support of the contention that the power of removal is unlimited, it is shown from the journal of the constitutional convention of 1870 that three amendments defining and limiting the authority conferred by this section were successively defeated: First. Mr. Gibson proposed an amendment to define and limit the power of removal in these words: "For crime, corruption, habitual drunkenness, incompetency, or neglect of duty." Second. Mr. Fentress offered in lieu of Mr. Gibson's amendment the following: "For official corruption, or for continued neglect of duty, or continued incapacity of any kind to perform the duties of his office." Third. Mr. Turner proposed the following amendment: "Provided, the causes of removal are such as are prescribed by the general law of the land passed by a legislature prior to the one taking action thereon." But the convention rejected all of these amendments, and adopted the section substantially as it stood in the constitution of 1834. It is now asked if this court will undertake to do what the convention so emphatically refused to do, — instruct the legislature for what causes removal can lawfully be had? It is insisted that, if the convention was willing to leave the matter to unlimited legislative discretion, this court cannot inquire into the sufficiency of the cause of removal or the regularity of the proceedings. It is insisted the courts can no more inquire into the existence and sufficiency of the causes or reasons that prompted the legislature to adopt a removal resolution than they can inquire into the reasons for the passage of statutes or the levy of taxes or the appropriation of money. It is insisted the power of removal as therein declared is absolute and unconditioned, and that the language indicates that the whole matter was left to legislative discretion.

We cannot concur in this construction of the removal clause of the constitution. The fact that several amendments specifying the particular causes for which the legislature would be authorized to remove were successively rejected does not, in our judgment, demonstrate that the convention thereby intended to invest the legislature with an unlimited power of removal. As well said by able counsel: "The authors of these amendments may have believed it best to put beyond any question that the cause of removal...