State ex rel. West v. Kivett

• Decision Date: 06 December 1957
• Citation: 7 McCanless 49,203 Tenn. 49,308 S.W.2d 833
• Parties: , 203 Tenn. 49 STATE of Tennessee ex rel. John Lee WEST, Attorney General, etc., Appellees, v. J. Kyle KIVETT, Appellant.
• Court: Tennessee Supreme Court

Page 833

308 S.W.2d 833

7 McCanless 49, 203 Tenn. 49

STATE of Tennessee ex rel. John Lee WEST, Attorney General etc., Appellees, v. J. Kyle KIVETT, Appellant.

Supreme Court of Tennessee.

Dec. 6, 1957.

Andrew Johnson, R. R. Kramer, Knoxville, Kramer, Dye, McNabb & Greenwood, Knoxville, of counsel, for appellant.

John Lee West, Atty. Gen, for 19th Judicial Circuit, G. Howard Nevils, Tazewell, for appellees.

TOMLINSON, Justice.

That which is to be decided is (1) whether this case has become moot, and, if so, (2) whether the Court should depart from its usual practice of declining to decide a moot case.

Kivett, while County Judge of Claiborne County, was sentenced in January of 1957 to the penitentiary for a term of three years and adjudged infamous following, and because of, his conviction of embezzlement of county funds. The Attorney General for that judicial circuit, because of said sentence, and while appeal from said conviction was pending, promptly instituted quo warranto proceedings, T.C.A. § 23-2801, stating in said bill that he was instituting such proceedings 'for the purpose of prohibiting the defendant Kyle Kivett from usurping and illegally holding and conducting the office of County Judge of Claiborne County, Tennessee, and or attempting to do so.'

The prayer of his bill was that Kivett be declared to have vacated and 'forfeited' his office by reason of this conviction. As justification for the relief prayed the Attorney General relied upon T.C.A. § 8-2801 to the effect that: 'Any office in this state is vacated: * * * (6) By the sentence of the incumbent, by any competent tribunal in this or any other state, to the penitentiary, subject to restoration if the judgment is reversed, but not if the incumbent is pardoned.'

Kivett's demurrer asserted the proposition that Section 6 of Article 6 of the Constitution 'provides the sole and exclusive method by which a county judge may be removed from office, said method of removal being by way of impeachment'. And that to construe Code Section 8-2801 as applying to the office of county judge would be to give it a construction, in so far as that office is concerned, which violates the aforesaid constitutional provision.

The Chancellor adjudged that constitutional provision not applicable to Code Section 8-2801; that Kivett by his conduct had, by reason of said code section, vacated the office 'to the same extent as if he had resigned'; that the suit merely was to enjoin him from interfering with possession of an office already vacated by him. Kivett appealed, and while that appeal was pending died in June of 1957. When this fact was officially made known this Court inquired as to whether the case had become moot.

The administratrix' insistence is that it is not moot, but that if it is, the nature and importance of the question is such that this Court should decide it. Actually, the question at issue was whether Judge Kivett was the de jure county judge after his sentence and conviction.

The administratrix insists that the case is not moot because if this Court reverses the Chancellor, then 'without further litigation the proper county warrant would be issued and paid covering the salary due Judge Kivett's estate'. The pleadings do not raise that question. Moreover, Claiborne County is not a party to these proceedings. So, if the case be otherwise moot the Court thinks that the salary question does not per se justify a decision of such case.

An intervening petition was filed by James D. Estep, Jr., wherein he alleged that the Quarterly Court had elected him to fill the office alleged to have been vacated by the conviction of Kivett. Under an injunction theretofore issued by reason of the petition, etc. of the District Attorney the keys, etc. of the office of County Judge had been taken charge of by the sheriff. The prayer of Estep's petition was that the injunction be modified so as to direct the sheriff to turn the keys, etc. over to him. The injunction was so modified. The administratrix insists that 'the case is not moot because the right and authority of the intervening petitioner to perform the duties of the County Judge of Claiborne County are still in issue'.

The sole question under the pleadings in this case was whether Judge Kivett's right to the office had been terminated by his conviction. The performance of the duties of the office pending appeal from the date of this conviction until the death of Judge Kivett could have no possible bearing upon what is the answer to that question. So, the performance of those duties during that period does not prevent the question from becoming moot by reason of Judge Kivett's death if it otherwise is. Was it rendered moot by reason of his death?

State ex rel. Wilson v. Bush, 141 Tenn. 229, 231, 208 S.W. 607, 608, was an ouster proceedings to remove Bush from the office of sheriff for alleged malfeasances. His term of office expired pending appeal. The appeal was dismissed with the statement that 'the court cannot retain jurisdiction of an ouster suit where the defendant's term of office has expired, where nothing can be done upon decree here except to tax costs.'

State ex rel. Phillips v. Greer, 170 Tenn. 529, 531, 98 S.W.2d 79, was likewise a proceedings to oust from office a justice of the peace. Pending the appeal, his term of office expired. The appeal was dismissed with this statement: 'It has been uniformly ruled that after expiration of the term of office a proceeding to oust the official is moot. Appeals pending when the term of office expired have been uniformly dismissed not only by the courts of other states but by the courts of this state.'

State ex rel. Agee v. Hassler, 196 Tenn. 158, 160-161, 264 S.W.2d 799, 800, was likewise a proceedings to oust a county superintendent of education for alleged wrongful acts. While the case was pending on appeal his term expired. The appeal was dismissed with the statement that: '* * * since the only valid decree which could be rendered under the pleadings in this case, would be a decree to remove Defendant from a term of office which expired on January 12, 1953, such a decree would be a vain and useless thing, and therefore, the questions presented here are moot.'

On principle upon which the foregoing decisions are based this Court is of the opinion that the question as to whether Kivett was entitled to hold the office pending appeal of his conviction became moot by reason of his death during that period. A decree affirming or reversing the Chancellor can have no effect whatsoever within the pleadings in this case on any one. To decree, therefore, such an affirmance or reversal would be a vain and useless thing unless, as is so earnestly insisted by counsel for the administratrix, it should be decided, though moot, because it will englighten the public upon a very important constitutional 'question of considerable public interest affecting the rights of all the members of the judiciary of this State'. And that question, abstract here, is whether the Legislature can constitutionally enact a statute providing that the conviction of a judge of a felony ipso facto vacates his office.

Beck v. Puckett, 2 Tenn.Cas. (2 Shannon) 490, 495, decided in 1877, declared the practice of this Court to be that a constitutional question

'will only be adjudged when it is presented in a...