Pope v. Phifer

• Decision Date: 31 December 1870
• Citation: 50 Tenn. 682
• Parties: Thomas Pope et als, Justices of White County, v. Foyster Phifer et als., Commissioners, etc.
• Court: Tennessee Supreme Court

50 Tenn. 682

Thomas Pope et als, Justices of White County,

v.Foyster Phifer et als., Commissioners, etc.

Supreme Court of Tennessee.

December Term, 1870.

FROM WHITE.

Chancery Court at Sparta. W. H. GOODPASTURE, Ch.

MAURY & COLMS for Plaintiff.

FARRISS for Defendant.

FREEMAN, J., delivered the opinion of the Court.

This bill is filed by complainants, the three first of whom composed the Quorum Court of White county at the time, and other citizens of said county, to restrain by injunction the defendants from organizing as a Board of Commissioners, or Commissioners' Court, for the County of White, and to have a law that was passed by the Legislature on the 12th of March, 1868, entitled “An act to create a Board of Commissioners for the county of Madison,” the provisions of which were extended, by the 15th section of said act, to the county of White, declared unconstitutional, and then to perpetually enjoin the Commissioners appointed from acting as such Board under said act.

This act, it is insisted, is in violation of the Constitution of Tennessee, and a number of grounds are assigned in the bill upon which its validity is attacked. It has been argued with great zeal and marked ability by counsel on both sides; and as it is a question on which there has been difference of opinion, and which has given rise to much feeling and angry discussion, we propose to examine it as fully as the facilities at hand for such investigation will permit, and will endeaveor to place our conclusions on the basis of sound reason, principle and authority.

Without at present citing the various provisions of this act of the Legislature of our State, we may assume that it proposes to supplant and abolish that ancient institution of the State, known as the Quarterly Court, and place in its stead a Board of three commissioners, appointed by the Governor, conferring upon the commissioners the powers of the Quarterly Courts, together with some additional powers, perhaps not possessed by said court under the laws in existence at the time of the passage of this act by the Legislature.

The first question presented for our consideration is, whether the Legislature had the constitutional power to do this? And the next is, whether it could be done in the mode attempted; that is, by an exceptional enactment, applicable to one or more counties, and not by a general law, applicable alike to all the counties of the State, or operating equally and alike over the whole territory of Tennessee--in other words, is this the law of the land, within the meaning of the Constitution?

On the first question, there is some difficulty in arriving at a satisfactory conclusion. The County Court, or Quarterly Court, or Court of Pleas and Quarter Sessions, was part and parcel of the organized machinery of our State government at the adoption of the Constitution of 1834, and had been of the State of North Carolina before the adoption and formation of our original Constitution of government of 1796. By the Constitution of 1796, article 6, it is provided: “There shall be appointed in each county, by the County Court, one Sheriff, one Coroner, one Trustee, and a sufficient number of constables, who shall hold their offices for two years. They shall also have power to appoint one Register and one Ranger for the county, who shall hold their offices during good behavior.” By article 5, sec. 12, it is provided, that “Justices of the Peace shall be appointed for each county;” and their number was limited to two for each captain's company, except for the company that includes the county town, and in this they should not exceed three. Yet we find in this Constitution no provision establishing such a court. It is simply recognized and treated as one of the existing institutions of the State, well known, and therefore referred to simply as the “County Court.”

This institution continued among us down to the time of the formation of the Constitution of 1834; and so far as we can learn from the history of that period, no com plaint has ever been made of it--no wish had been expressed by any one to get clear of it, or to alter or abolish the system of arrangements of which it was a part, nor to substitute anything in its stead. We can not learn that the convention of 1834 had any purpose to abolish it, or had any proposition submitted to it, looking to such an end. We may safely affirm that, if such proposition had been presented, it would have been promptly rejected. That convention had in it much of the best talent of the State, and lawyers whose learning and thorough acquaintance with the machinery of our State Government, has not been excelled by any who have lived in the State.

In arriving at a correct conclusion as to what the Constitution intended to establish, and what to abolish, or its true intent and meaning on questions such as are involved in this case, in the language of Judge Denio, in delivering the opinion of a majority of the Court of Appeals in the case of The People v. Draper, 15 N. Y. Rep., 537, “we must keep in mind that the Constitution was not framed for a people entering into a political society for the first time, but for a community already organized and furnished with legal and political institutions adapted to all, or nearly all, the purposes of civil government, and that it was not intended to abolish these institutions, except so far as they were repugnant to the Constitution then framed.”

We may assume the proposition to be a correct one, that the intent and meaning of the Constitution, when arrived at in accordance with the established principles of construction, is the supreme law of the land to our legislature, and that the legislature has plenary legislative--that is, the law-making power--except in so far as they are restrained by the Constitution of the State, or of the United States. The prohibition to exercise a particular power, or make a particular enactment, need not be expressed however, but may be implied. And that such an implication would fairly arise when we can see from the Constitution that certain arrangements therein provided for, or certain institutions, or parts of the existent organization of the State, are referred to as being the agencies charged with the performance of certain duties by the terms of that instrument, and that the existence of these agencies was contemplated as continuing, and was thus, however remotely recognized by the Constitution, that such reference would amount to a fairly implied constitutional establishment of, or at any rate, recognition of, and continuance of, such existing agencies or organizations.

Now, we look at the fact that, by the Constitution of 1796, article 6, referred to above, the County Court is chargeable with the election of certain officers, yet we find no other notice of its organization or establishment in that instrument. We find, however, that as then recognized, it continued in existence as part of the machinery of that well-known settled, and established political and civil division of our state government, the county, up to the adoption of the Constitution of 1834, and conclude that if such an innovation as the destruction of the County Court had been contemplated, or if authority had been conferred on the Legislature to make such change, it would have been plainly conferred by express provision.

But without insisting on this view, as conclusive, we may safely and surely look at the Constitution itself, and see in the light of the facts existent at the time of its adoption, whether or not in that instrument there is by fair inference a recognition of the existence and intended perpetuation of the Quarterly or County Court. If so, the Legislature can not abolish it and supplant it by other agencies, differently constituted, though charged with the same duties and given the same powers.

It is provided by article 6, sec. 15, of the Constitution, that the counties of the State shall be laid off into districts of convenient size, so that the whole number in each county shall not be more than twenty-five; and that there shall be two Justices of the Peace elected for each district, including county towns, which shall elect three, etc.

In article 7, sec. 1, it is provided among other things, “There shall be elected for each county, by the Justices of the Peace, one Coroner and one Ranger, who shall hold their offices for two years.”

By sec. 2 of said article, “should any vacancy occur subsequent to an election in the office of Sheriff, Trustee or Register, it shall be filled by the Justices,” etc.

It will be seen that the same officers are here to be elected by the “Justices of the Peace”--that is, the Coroner and Ranger; and, in case of vacancy, of Sheriff, Trustee and Register, that were by the Constitution of 1796, art. 6, directed to be appointed by the “County Court.” It is true that the Sheriff and County Trustee, who were to be appointed by the County Court by said 6th article, are to be elected by the provision of the 7th article, sec. 1, of the Constitution of 1834, by the people, except in case of vacancy. Yet, we do not see how any one can take the two articles together, and the facts existent at the time of the adoption of the Constitution of 1834, and not conclude that the only change intended to be made by the Convention in article 6, sec. 1, of 1796, was, that the Sheriff and Trustee should be elected by the people, but the Rangers and Coroners were to continue to be elected by the Justices of the Peace____that is, by the County or Quarterly Court, assembled as has been their wont from the foundation of the State; that by “Justices of the Peace,” in article 7, sec. 1, of the Constitution of 1834, was meant precisely the same thing as “County Court,” in article 6, of the Constitution of 1796.

This view of the case is strengthened by the fact that there is no provision for their special assemblage for the purpose of performing the duty with which they...