Moore v. Love

• Decision Date: 10 August 1937
• Citation: 107 S.W.2d 982,171 Tenn. 682
• Parties: MOORE et ux. v. LOVE.
• Court: Tennessee Supreme Court

107 S.W.2d 982

171 Tenn. 682

MOORE et ux. v. LOVE.

Supreme Court of Tennessee.

August 10, 1937

Appeal from Chancery Court, Washington County; S.E. Miller Chancellor.

Suit by Arthur Moore and wife against Charles E. Love, wherein the chancellor entered decree declaring his incompetency to hear the cause. On application by defendant and his solicitors Cox, Taylor & Epps, and W. E. Miller, for a writ of mandamus or certiorari to set aside and vacate such decree, wherein temporary writ of mandamus and writ of certiorari were ordered to be issued.

Mandamus granted and cause remanded.

Chase & Neel, of Johnson City, for complainants.

Cox Taylor & Epps and W. E. Miller, all of Johnson City, for defendant.

Fyke Farmer and Joseph Martin, both of Nashville, and Geo. N Barnes and Thomas P. Gore, both of Johnson City, for petitioners.

Fowler & Fowler, of Knoxville, as amici curiae for petition.

Mack Evans, E. M. Johnston, Joe Allen, Oscar M. Fair, Jr., and C. Lee Richardson, all of Elizabethton, J. Fon Davis, T. H. Morris, Vines, Hawkins & Bryant, A. D. Hughes, Colin B. McKinney, Gladstone H. White, Guinn, Mitchell & Erwin, J. F. Bryant, Don Gray, and George M. Dunn, all of Johnson City, and R. M. May, of Jonesboro, amici curiæ, respondents to petition.

GEORGE H. ARMISTEAD, Special Judge.

The only question involved in this case at this time is a consideration of the constitutionality of chapter 97 of the Public Acts of 1937, which said act purports to make judges of courts of record incompetent to hear and determine cases in which lawyers are interested where there is blood relationship between such judges and lawyers. The act provides that the word "lawyer" shall be construed to include any firm of which such lawyer is a member or associate, and further provides that any judgment or decree entered by any judge of the court of record where the judge thereof bears such relationship shall be a nullity. The act by its terms, excludes a justice of the peace, probate judge, judge of a court of general sessions, county judge, juvenile judge, or chairman of a county court. By its terms the act provides that, when a judge shall become incompetent by the terms of the act, a special judge shall be selected to try the case in question in accordance with the provision of section 9919 of the Code of Tennessee for the year 1932.

This cause is pending in the chancery court of Washington county at Johnson City, Tenn., and is before this court upon the application by defendant Charles E. Love and his solicitors, Cox, Taylor & Epps, and W. E. Miller, for a writ of mandamus or certiorari seeking to set aside and vacate a decree entered by Hon. S.E. Miller, the regularly elected and acting chancellor for said division, by the terms of which decree said chancellor declared his incompetency to hear this cause on the ground that petitioner, W. E. Miller, his son, was an associate, although not a member, of the firm of Cox, Taylor & Epps, solicitors for Charles E. Love, and thereby under the terms and provisions of said chapter 97 of Public Acts of 1937 the regular chancellor was incompetent to hear said cause.

Upon application being duly made, a temporary writ of mandamus and writ of certiorari were ordered to be issued by this court. The matters involved herein have been ably argued at the bar of this court by solicitors for the petitioners and exhaustive briefs have been filed by amici curiæ both in support of the petition and in response thereto, to aid the court in the determination of the validity of said act.

The act in question attempts by its terms to define a specific reason which shall form the basis of the competency or incompetency of a particular judge to hear and determine a particular case.

The Constitution of Tennessee follows the general outline of the Constitution of the United States and of several states of the Union, in separating powers of government into the legislative, executive, and judicial branches.

Article 2, sections 1, 2 of the Constitution, provides as follows:

"Section 1. Division of powers.--The powers of the government shall be divided into three distinct departments: The Legislative, Executive, and Judicial.

"Sec. 2. No person to exercise powers of more than one department.--No person, or persons, belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted."

It will therefore be observed that the power of the legislative over the judicial branch of the government must conform to the limitations expressed in the Constitution. It should be noted that the Constitution does not reserve to the Legislature all right to deal with any other branch of the government with certain exceptions, but there is an express prohibition of any branch of the government exercising any power properly belonging to another branch except in the cases expressly directed or permitted by the Constitution itself. Lawyers' Tax Cases, 55 Tenn. (8 Heisk.) 565; The Judges' Cases, 102 Tenn. 509, 53 134, 138.

In The Judges' Cases, supra, it was argued that the Legislature has all power not denied by the Constitution of the state nor by the Constitution of the United States, that its power was, with these exceptions, as omnipotent as the power possessed by the Parliament of Great Britain, and that, since the causes of removal were not defined or limited in the Constitution, the Legislature could itself define such causes and remove the judge from office for any reason which it deemed sufficient.

The court, however, rejected this argument upon the principle that it was in conflict with the provisions of the Constitution guaranteeing the independence of the judiciary, and in conflict with the principles instinct in the Constitution that the various departments should be independent of one another. It was held that the Constitution by implication excluded any power in the Legislature to remove a judge for reasons other than such reasons as may be personal to the judge's conduct of the office. In that case the court said:

"Again, if the power of removal conferred by this section is arbitrary and unlimited a judge might be removed on account of his religion, his policies, his race, or because he had declared unconstitutional a particular enactment of the legislature. Such a construction would be monstrous and wholly abhorrent to fundamental ideas of justice and judicial independence. The design of the framers of the constitution was to create three departments,--executive, legislative, and judicial,--which should be co-ordinate and wholly independent in the exercise of their appropriate functions. 'The legislature, though possessing a larger share of power, no more represents the sovereignty of the people than either of the other departments. It derives its authority from the same high source.' Bailey v. Philadelphia, W. & B. R. Co., 4 Har. (Del.) [389], 402 [44 Am.

Dec. 593]; Whittington v. Polk, 1 Har. & J. [(Md.) 236], 244. Said Thomas T. Marshall, viz.: 'We have incorporated certain permanent and eternal principles in written constitutions, and erected an independent judiciary as the depositary and interpreter, the guardian and the priest, of these articles of freedom.' It has been said that, of all the contrivances of human wisdom, this invention of an independent judiciary affords the surest guaranty and the amplest safeguard to personal liberty and the rights of individuals.

"If the legislature has such power as is contended for in the construction of this clause of the constitution, the judiciary would no longer be an independent and coordinate branch of the government, but a mere servile dependency. But it is said, conceding the legislature had no power to remove for the cause assigned, its action is nevertheless final, and not subject to review by the judiciary. If this is so, the distribution of the powers of government, and vesting their exercise in separate departments, would be an idle ceremony. It is very true that no department can control or dictate to another department when acting within its appropriate sphere. People ex rel. Billings v. Bissell , 68 Am.Dec. 591; Wright v. Wright's Lessee , 56 Am.Dec. 723."

The next inquiry should therefore consider the cases wherein one branch of the government is directed or permitted (italics ours) by the Constitution to exercise any of the powers properly belonging to another department. In the case at bar the question presented is the right of the Legislature to exercise a right of control over the judicial branch of the government. Therefore, we consider the powers which the Constitution directs or permits the Legislature to exercise over the judiciary.

Each of the three Constitutions under which the state has operated has recognized the foregoing principles of division of authority and a restriction of the power of the legislative branch to control or direct the judiciary. The first Constitution of this state, adopted in 1796, vested the judicial power of the state in such superior or inferior courts of law and equity as the Legislature shall from time to time direct and establish. Article 5, section 1, Constitution of 1796.

That Constitution provided for the incompetency of judges as follows:

"Incompetency of Judges; Special Judges.--No judge shall sit on the trial of any cause where the parties shall be connected with him by affinity or consanguinity except by consent of parties. In case all the judges of the Superior Court shall be interested in the event of any cause or related to all or either of the parties, the governor of the state shall, in such case, specially commission three men of law knowledge for the determination thereof." Section 8,...