State ex rel. Smiley v. Glenn

• Citation: 54 Tenn. 472
• Parties: THE STATE OF TENNESSEE ex relatione THOMAS T. SMILEY v. W. A. GLENN.
• Decision Date: 10 February 1872
• Court: Supreme Court of Tennessee

54 Tenn. 472

THE STATE OF TENNESSEE ex relatione THOMAS T. SMILEY

v.W. A. GLENN.

Supreme Court of Tennessee.

Feb. 10, 1872.

FROM DAVIDSON.

From the Chancery Court, October Term, 1871. E. H. EAST, Ch.

JOHN TRIMBLE, J. B. WHITE and ED. BAXTER for relator.

In August, 1871, a vacancy occurred in the office of County Judge of Davidson county, to fill which the Governor appointed the relator, and the County Court elected the defendant. Who is entitled to the office.

The Chancellor held that the law had not provided for filling the vacancy. Either it is a casus omissus, or the Governor had the power. Every presumption should be made against the former branch of the alternative.

The power clearly did not belong to the County Court. The only argument that it did deduces it from sec. 17, art. xi, Const. 1870: “No county office created by the Legislature shall be filled otherwise than by the people or the County Court.” But this is merely a negative provision, under which the Legislature have discretion to designate in which of two ways certain offices shall be filled. This provision in the alternative could not of itself authorize the election of defendant by the County Court.

Does this provision negative the Governor's power? The argument that it does postulates that the County Judge is a county officer in the sense of the provision; and that to fill a temporary vacancy in an office is to fill the office. Neither assumption is warrantable.

The County Judge is a member of the State judiciary, and none the less so because certain special county duties are annexed to his office, which, were they the whole of his duties, might constitute him a mere county officer.

He is mentioned, and his election provided for, in the same article of the Code with the Judges of the Supreme, Chancery, and Circuit Courts: Code, part 1, title iii, chap. 5, art. 1; he is required to be commissioned just as they are, and his term is of equal length with theirs. He exercises jurisdiction in many cases concurrently with the Circuit and Chancery Courts, e. g. to remove and appoint trustees; to partition lands; to allot dower, etc., etc.; and in certain cases appeals lie from his court directly to the Supreme Court. He may interchange, too, with other County Judges.

His duties other than judicial can not deprive him of his judicial status. In laying off roads, ferries, etc., where the County Court acts as a political organ rather than a court, nevertheless appeals lie to the Circuit Court, which likewise acts otherwise than a court--a branch of the judiciary--in determining such appeals; yet having some extrajudicial duties was never supposed to mar the judicial character of the Circuit Court.

The County Judge then is not a mere county officer, and so the first of the two assumptions fails.

The second is equally unfounded.

In a literal sense, indeed, to fill a vacancy in an office is to fill the office; but in constitutional parlance a distinction is taken. See Const. Tenn., art. ii, sec. 14; art. vii, sec. 1; Ib., sec. 2. Also, Const. U. S., art. i, sec. 2; Ib., sec. 3; art. ii, sec. 2, from which this will be very apparent.

Our recent history will readily explain sec. 17, art. xi, Constitution 1870. Its object was to preclude the creation of officers like the late odious County Commissioners, holding regularly by appointment of the Governor, etc.; not to prevent the filling of temporary vacancies in offices regularly elective.

The constitutional provision, then, neither bestowed the power in question upon the County Court nor took it away from the Governor. It remains to inquire whether the Governor previously had the power.

It was conferred upon him by s. 315 of the Code. This is part of art. 1, chap. 5, title iii, part 1, which extends from s. 307 to 316 inclusively.

Section 312 provides: “Whenever a vacancy occurs in any of the offices herein named, the Governor shall order an election by issuing proper writs, etc.”

And then, after regulations in ss. 313 and 314, as to notice of election, s. 315 provides: “In the meantime the Governor shall appoint a suitable person to fill the office until the election of a successor.”

Of course the power conferred in s. 315 relates to “the offices herein named” of sec. 312. The word “herein” can not mean in this section, for section 312 does not name any office. It can mean only in this article. The offices named in the article are judgeships of the Supreme, Chancery, Circuit, and certain special courts, and County judgeships. These last are “herein named” equally with the rest, and are of course equally included in the provision as to the appointing power.

It is true, in sections 313 and 314, regulating length of notices of election, the County Judges are not mentioned, but then the Special Court Judges are equally pretermitted, and yet they will be admitted to be within the provision as to the appointing power, and if so, then by parity of reasoning, so must be the County Judges.

But it is said that section 315 relates only to offices wherein vacancies were to be filled by elections ordered by the Governor, the expression “herein named” in section 312 including only these, and that County judgeships, although named in the article, were clearly not intended to be included among those provided for in sections 312 and 315, since section 827 provides: “All special elections for county officers authorized by law, shall be ordered by the Sheriff,” etc. But this argument again postulates what has been already refuted--that the County Judge is a mere county officer.

The law respecting the office in question has been modified by the Constitution of 1870 in so far only that now, special elections being done away with, the incumbent, appointed as previously directed, is to continue in office until the next biennial election.

J. D. WADE and JOHN C. THOMPSON for defendant.

No county office created by the Legislature shall be filled otherwise than by the people or the County Court. Const. 1870, art. xi, sec. 17.

This is tantamount to requiring that every such office shall be filled in one or the other of these modes; and as in the present case, special elections being abolished by the Constitution, the office could not be filled by the people, it had to be done by the County Court.

It is said that this provision is merely mandatory upon the Legislature. In Green v. Robertson; Hite v. Glidewell; Cowan v. Boyce; and Brien v. Williamson, 5 and 7 Howard, the Court of Appeals of Mississippi held that a constitutional provision that after a given date the importation of slaves into the State for sale should be prohibited, was self-executing. In Yerger v. Rains, 4 Hum., 259, the reasoning of these cases is approved by this Court.

But at all events, the constitutional provision cited deprived the Governor of the appointing power, even if previously he had it, as we shall see he did not.

In reply to this, it is first said that the County Judge is not a county officer. But this is not an open question. In Moore v. State, 5 Sneed, 512, and again in Saffrons v. Ericson, 3 Col., 1, it was decided that the election of County Judges was validly held at a time when the election of Judges was expressly prohibited, for the reason that County Judges were not Judges, i. e. not members of the State Judiciary, but were mere county officers. In the first mentioned case, with reference to the County Judge of Knox county, the Court said:

“True, this Judge was elected on the same day of other county elections, but the Constitution had no reference to the election of county officers, no mater by what name called, in the provision made for the election of the regular judicial officers of the State. In the creation of any such county office, the Legislature was free to prescribe the time for the election of the incumbent.”

This particular County Judge, in addition to all the powers of the County Judge of Davidson, had certain criminal jurisdiction superadded, and yet even he was held to be a mere county officer.

But second, it is said that the Constitution recognizes a distinction between filling an office and filling a vacancy in an office.

Turning thereto we find that sometimes the word vacancy is used to signify the entire unexpired portion of the term of office, e. g. in art. ii, s. 15, as to elections to fill vacancies in either house; and in art. vii, s. 5, as to elections to fill judgeships--and here, by the way, the vacancies are required to be filled by the original constituent power; and that at other times the word is used to designate a temporary period of incumbency less than the balance of the term, e. g. in art. iii, s. 14, as to vacancies during the recess in offices elective by the Legislature; art. vii, s. 2, as to vacancies in offices of Sheriff, Trustee, etc. And that at one time the election of the successor for the balance of the term is called filling the vacancy, e. g. art. vii, s. 5, as to the election to fill out the unexpired terms of District Attorneys and Judges: “such vacancy shall be filled at the next biennial election, etc.;” and at another time the same thing is called filling the office; e. g. art. vii, s. 2, as to election to fill out balance of term of Sheriff, Trustee, etc.: “and such office shall be filled, etc.”

Likewise as to the citations from the Constitution of the United States. Art. i, ss. 2 and 3, calls electing for the entire unexpired terms of Representatives and Senators, filling the vacancies. The latter section, as to the brief incumbency before the next meeting of the Legislature, provides: “the executive may make temporary appointments until, etc.,” not using the word vacancy in connection with these, the vacancies of our opponents, but only in connection with the entire balance of the term. And s. 3, art. i, speaks of the seats of Senators of the third class being vacated at the expiration of six years, a vacancy which is filled, of course, by the election of the...