State ex rel. Brooks v. Eblen

• Decision Date: 29 November 1947
• Parties: STATE ex rel. BROOKS et al. v. EBLEN, County Judge.
• Court: Tennessee Supreme Court

206 S.W.2d 793

185 Tenn. 566

STATE ex rel. BROOKS et al. v. EBLEN, County Judge.

Supreme Court of Tennessee.

November 29, 1947

Appeal from Chancery Court, Roane County; J. R. Ketron, Chancellor.

Suit by the State of Tennessee, on the relation of T. F. Brooks and others, as taxpayers, against Elmer L. Eblen to oust the defendant from the office of County Judge of Roane County for alleged malfeasance in office. From an adverse decree, the relators appeal.

Affirmed.

R. H. Ward, of Kingston, and Fred F. Fennell and J. W. Stone, both of Harriman, for appellants.

Cassell & McDavid and D. O. Harris, all of Harriman, J. Ralph Tedder of Rockwood, J. F. Littleton, of Kingston, and Harry Joyce of Wartburg, for appellee.

TOMLINSON Justice.

Chapter 18 of the Private Acts of 1905 created the office of county judge of Roane County. The act was amended by chapter 190 of the Private Acts of 1911 so as to grant extensive judicial authority to this judge. By the express terms of the act he is made the fiscal agent of the county; performs all the duties of the chairman of the quarterly court; is empowered to issue all extraordinary writs to the same extent as Chancellors and Circuit Judges.

The present suit was instituted upon relation of twenty-seven taxpayers of Roane County by the filing of the petition in Chancery making defendant thereto Elmer L. Eblen, the county judge. This petition charges Eblen with the commission of grave malfeasances in office and prays that he be 'ousted from office as county judge and fiscal agent of Roane County' if these charges are sustained upon the hearing. Eblen demurred to the petition on the ground that the chancery court was without jurisdiction to grant any of the relief prayed. Relators moved to strike the demurrer on the theory that an answer is the only pleading allowed a defendant to a petition filed under the ouster law Code section 1877 et seq., and moved for an order pro confesso because defendant had not filed such answer.

The Chancellor overruled both motions and sustained the demurrer on the ground that Eblen as county judge of Roane County under the aforementioned legislative act was a judge of an inferior court within the meaning of article 6, section 1 of the Constitution and, therefore, can be removed from this office only by the legislature; that, therefore, demurrer challenging the jurisdiction of the Court was proper notwithstanding the requirements of the ouster law.

The first of the two questions presented on this appeal of the relators is whether the demurrer was a permissible pleading in view of the fact that the ouster law forbids any response other than an answer to a petition filed for the purpose of removing an unfaithful public officer. A number of code sections are referred to and discussed in the briefs, but the view we take of this question renders it unnecessary to consider them. Any official who can be removed by the Court under the provisions of the ouster law is not permitted to demur to the bill filed for the purpose of procuring such removal. The ouster law forbids any response other than an answer in such a case. Code section 1887; State ex rel v. Ward, 163 Tenn. 265, 269, 43 S.W.2d 217. However, if the petition shows on its face that the officer sought to be removed is one whom the Court has no power to remove under the authority of the ouster law, then no matter how true the allegations of the petition may be, the officer moved against may demur to the petition because he does not come within the provisions of the ouster law and is not, therefore, subject to its requirements as to pleadings. The ouster law expressly 'except(s) such officers as are by the constitution removable only and exclusively by methods other than those provided in this article.' Code section 1877. If, therefore, the Constitution forbids the removal by the Court of the county judge of Roane County, then that official does not come within the provisions of the ouster law and the prohibition thereof with reference to pleadings does not apply to him, and his demurrer would, in that event, be proper. Thus, this question of pleading will ipso facto be disposed of by determination...