State v. Bush

• Decision Date: 14 September 1981
• Citation: 626 S.W.2d 470
• Parties: STATE of Tennessee, Appellee, v. James BUSH and Reva Bush, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 470

626 S.W.2d 470

STATE of Tennessee, Appellee, v. James BUSH and Reva Bush, Appellants.

Court of Criminal Appeals of Tennessee, at Knoxville.

Sept. 14, 1981 Permission to Appeal Denied by Supreme Court Dec. 28, 1981.

Ben W. Hooper, II, Newport, for appellants.

William M. Leech, Jr., Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, Kimberly Lynne Anne Hattaway, Asst. Atty. Gen., Nashville, for appellee.

OPINION

TATUM, Judge.

The defendants, James Bush and Reva Bush, were convicted of felonious possession of unstamped alcohol, possession of stamped alcoholic beverages for resale and possession of alcoholic beverages for resale without a proper permit or license. Pending this appeal, James Bush died. Therefore, the cases are abated as to him. The judgments are affirmed as to Reva Bush.

Much of the evidence which was the basis of Reva Bush's conviction was a quantity of alcoholic beverages seized by officers pursuant to a search warrant. The search warrant was issued by James Shults, an individual who was purportedly appointed a Judicial Commissioner by the Quarterly County Court of Sevier County, pursuant to T.C.A. § 40-120. The defendant insists that this code section is unconstitutional in that it creates an "inferior court" under Article VI, Section 1, Constitution of Tennessee, and therefore the statute violates Article VI, Section 4 of the State Constitution, because it does not require election of Judicial Commissioners, an age limit of at least 30 years, or a term of office of 8 years. The State insists that the Legislature created a "corporation court" as authorized by Article VI, Section 1, Tennessee Constitution, and that therefore Article VI, Section 4, Tennessee Constitution, is not applicable to the Judicial Commissioners.

The legislation under consideration, T.C.A. § 40-120(a)(1), (2), provides as follows:

"40-120. Appointment of judicial commissioners-Duties-Terms-Compensation.-(a)(1) The chief legislative body of any county having a population of less than two hundred thousand (200,000) according to the 1970 federal census or any subsequent federal census may appoint one or more judicial commissioners whose duty or duties shall include but not be limited to the following: issuance of arrest and search warrants upon a finding of probable cause in accordance with the procedures outlined in chapters 5 and 6 of title 40 and issuance of mittimus following compliance with the procedures prescribed by § 40-604. The term or terms of said officers shall be established by the chief legislative body of the counties but shall not exceed a four-year term. No member of the county legislative body shall be eligible for appointment as a judicial commissioner.

(2) The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the chief legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed therein being performed by a judicial commissioner. In a county having a county commission, the chief legislative body shall be the county court.

We disagree with both the State and defendant. We do not think that the above statute created either an "inferior" court or a "corporation" court.

The meaning of the term "court" is discussed by the Supreme Court in Mengel Box Company v. Fowlkes, 135 Tenn. 202, 206, 186 S.W. 91 (1916):

"A court is an instrumentality of sovereignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries. The presence of a judge or judges is necessary as an essential element of a court. A 'court' was defined by Bacon to be 'an incorporeal being, which requires for its existence the presence of the judges or a competent number of them.'

The term as defined by Mr. Bouvier in his Law Dictionary (quoted by this court in Railroad v. Crider, 91 Tenn. 489, 505, 19 S.W. 618, 622), is this:

'The presence of a sufficient number of the members of a body in the government, to which the public administration of justice is delegated, regularly convened in an authorized place, at an appointed time, engaged in the full and regular performance of its duties.' "

The act in question does not provide that the Judicial Commissioner convene a court at any particular place or time. His jurisdiction is limited to the issuance of warrants for arrest and search and to the issuance of mittimus. He is not given duties which would lend themselves to "full and regular performance" at an appointed time or place.

The duties fixed by the legislation for Judicial Commissioners are characteristic of those of a "magistrate," and not of a "court." Judicial Commissioners are expressly designated as "magistrates" in T.C.A. §§ 38-301, 40-114 and 40-603, indicating that the legislature intended Judicial Commissioners to be magistrates. Magistrates are authorized to issue arrest warrants by T.C.A. §§ 40-602 and 40-701. A magistrate is authorized to issue search warrants by T.C.A. § 40-501.

The power of the legislature to designate "magistrates" is not challenged. The legislature has unlimited power of legislation, except so far as it is restrained expressly or by necessary implication, by the Constitution of either the United States or of this State. See Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (1911); Wright v. Cunningham, 115 Tenn. 445, 91 S.W. 293 (1905); Railroad v. Wells, 104 Tenn., 706, 710, 59 S.W. 1041 (1900).

Citing Marsh v. State, 203 S.W.2d 372, 373 (1947), the defendant correctly points out that the issuance of a search warrant is a judicial function. She erroneously reasons that a judicial function can constitutionally be performed only by a judge of a court created by the legislature pursuant to Article I, Section 1, of the Tennessee Constitution. We espouse the reasoning of the Supreme Court of the United States in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), in which the court was faced with a constitutional attack upon a statute authorizing a court clerk to issue an arrest warrant. The court held that the Fourth Amendment did not require the issuing magistrate or "judicial officer" to be a lawyer or a judge, but he must meet only two tests:

"He must be neutral and detached, and he must be capable of determining whether probable cause exists...."

The court further held:

"Appellant likewise has failed to demonstrate that these clerks lack capacity to determine probable cause. ... our legal system has long entrusted non-lawyers to evaluate more complex and significant factual data than that in the case at hand. Grand juries daily determine probable cause prior to rendering indictments, and trial juries assess whether guilt is proved beyond a reasonable doubt. The significance and responsibility of these lay judgments betray any belief that the Tampa clerks could not determine probable cause for arrest."

"What we do reject today is any per se invalidation of a state or local warrant system on the ground that the issuing magistrate is not a lawyer or judge. Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers. .... All this is not to imply that a judge or lawyer would not normally provide the most desirable review of warrant requests. But our federal system warns of converting desirable practice into constitutional commandment. It recognizes in plural and diverse state activities one key to national innovation and vitality. States are entitled to some flexibility and leeway in their designation of magistrates, so long as all are neutral and detached and capable of the probable-cause determination required of them." Id. at 351-354, 92 S.Ct. at 2123-2124.

We hold that T.C.A. § 40-120 does not create an "inferior court" or a "corporation court" as referred to in Article VI of The Tennessee Constitution. This legislation created a "magistrate," to which office the requirements of Article VI, § 4 of the Tennessee Constitution are not applicable. We further hold that T.C.A. § 40-120(a)(1), (2) is not repugnant to either the constitution of the United States or of this State and that the General Assembly acted within its constitutional power in adopting this legislation.

We now consider whether the actions of the Quarterly County Court are sufficient in law to vest the office of Judicial Commissioner in James Shults. The minute entries are as follows:

"Whereas: Due to recent changes in laws and Tennessee codes, a real hardship has arisen in obtaining warrants at night.

Whereas: State statutes provides (sic) that Quarterly County Court can relieve this situation by hiring Judicial Commissioners.

Now Therefore Be It Resolved that the Quarterly Court of Sevier County, Tennessee appoint two (2) Judicial Commissioners at salaries not to exceed $125.00 per month for each commissioner.

Passed By Court

This July 17, 1978.

Motion by Montgomery and duly seconded by Burchfiel to adopt the above resolution. Motion carried and the (sic) instructed to place the same upon the minutes of this Court."

"James Shults was recommended by Dodgen and duly seconded by Reagan to fill the position of issuing warrants in Gatlinburg.

Motion carried and the clerk instructed to place the same upon the minutes of this Court."

The above two actions, that of the adoption of the resolution and that of the election of James Shults, were taken consecutively on the same day and both relate to the same subject matter. Therefore, they must be construed in pari materia in considering whether the language of the second minute entry was sufficient to designate James Shults as a Judicial Commissioner. Dixie Rents, Inc. v. City of Memphis, 594 S.W.2d 397 (Tenn.App.1979); Bethany v. State, 565 S.W.2d 900 (Tenn.Cr.App.1978). We must also observe that actions of Quarterly County Courts and...