State v. Graham

• Decision Date: 19 July 1930
• Citation: 30 S.W.2d 274,161 Tenn. 557
• Parties: STATE ex rel. BARHAM v. GRAHAM, Comptroller. STATE ex rel. DENISON v. SAME.
• Court: Tennessee Supreme Court

30 S.W.2d 274

161 Tenn. 557

STATE ex rel. BARHAM v. GRAHAM, Comptroller.

STATE ex rel. DENISON v. SAME.

Supreme Court of Tennessee.

July 19, 1930

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Separate bills by the State, on the relation of N. R. Barham and W. H Denison, against Edgar J. Graham, Comptroller. From the decrees, each relator appeals.

Bill of Barham dismissed, and that of Denison sustained.

C. W Hewgley, of Jackson, and J. C. R. McCall, of Huntingdon, for complainants.

L. D. Smith, of Knoxville, and R. E. Maiden, of Dresden, for defendant.

MCKINNEY J.

These causes, while not consolidated, were heard at the same time and will be disposed of in one opinion. The controversy is with respect to the salary of the office of judge of the Twelfth judicial circuit of Tennessee from September 1, 1926, to June 1, 1929, during which time a contest was pending between relators as to which was entitled to the office, and which contest was finally decided favorably to Denison by this court about the latter date. 159 Tenn. 226, 17 S.W.2d 692.

At the August election, in 1918, Barham was elected judge for eight years, beginning September 1, 1918. At the August election, 1926, he was opposed by Denison. Upon the face of the returns Denison received thirty-eight more votes than Barham. The latter immediately instituted contest proceedings. The Governor, upon advice of the Attorney General, declined to issue a certificate of election to either; and, under authority of chapter 73, Acts of 1870-71, appointed England temporary judge, who qualified and performed the duties of the office from September 1, 1926, until June 1, 1929, when the contest was finally determined, and received the salary for the period of his services.

On the ________ day of September, 1926, Edgar J. Graham, comptroller of the state, filed a bill against England, under the Declaratory Judgments Act, setting forth the facts hereinabove detailed. After quoting section 5 of article 7 of the Constitution, the bill alleged the following:

"The Attorney General for the State has ruled that under this constitutional provision N. R. Barham is still entitled to regularly draw his salary each month as Circuit Judge for the 12th Judicial Circuit, taking the view that during the pendency of the election contest the term of office of the said N. R. Barham has not ended, but, owing to the existence of said contest, he is temporarily disqualified to perform the functions of that office, remaining entitled to receive the emoluments thereof."

The bill further averred:

"Petitioner is advised that under chapter 29 of the Public Acts of Tennessee for the year 1923, he is entitled to file this petition and to have Your Honor declare his status, duties and obligations in the situation hereinabove described. He is advised that because of the rights and legal status of the defendant J. A. England he is a proper party defendant, and that upon this petition Your Honor will be empowered to construe chapter 73 of the Public Acts of Tennessee for the year 1870-71, determine its constitutionality and its correct meaning, and declare whether or not under the authority of such act your petitioner, during the pendency of the election contest hereinabove mentioned, may lawfully draw his warrant payable to the defendant J. A. England for an amount equalling the regular salary of a Circuit Judge, and may during said period also draw his warrant payable to N. R. Barham for the same salary."

It will thus be seen that every question which is now raised by Barham was submitted to the court in that case, and necessarily had to be considered in passing upon the matters involved, and was determined adversely to Barham's present contention, as appears from the published opinion found in 154 Tenn. 435, 288 S.W. 728.

In Morrison v. Gower, 154 Tenn. 624, 288 S.W. 731, 732, the validity of the act of 1870-71 was again questioned and its validity reaffirmed. In that case the question of the salary of a hold-over was not involved. The court inadvertently stated that, "in the case of Graham v. England, the right only of the temporary appointee to compensation was involved," overlooking for the moment that the comptroller had asked for and had been given instructions as to paying a salary to the hold-over judge. This explanation is made to meet the insistence that the court decided questions which were not involved.

It is true that Barham was not a party to the Graham bill, and the holding in that case is not res adjudicata as to him, and, if decided wrongly, should be corrected. At that time the court could not know who would be successful in the contest, and, after an investigation of the authorities, undertook to settle the legal points so that when the contest was concluded the controversy would be at an end.

After carefully considering the able argument and exhaustive brief filed by counsel for Barham, on a re-examination of the authorities, we must adhere to our original opinion, which we consider sound in law and just to all parties.

It is earnestly contended by counsel for Barham that the act of 1870-71 is unconstitutional, but that, if valid, it does not deprive him of his title to the office, as hold-over judge, and to the salary incident thereto.

The provisions of the Constitution directly involved are as follows:

Article 6, § 4: "The judges of the circuit and chancery courts, and of other inferior courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every judge of such courts shall be thirty years of age, and shall before his election, have been a resident of the state for five years, and of the circuit or district one year. His term of service shall be eight years."

Article 7, § 5: "Elections for judicial and other civil officers shall be held on the first Thursday in August, one thousand eight hundred and seventy, and forever thereafter on the first Thursday in August next preceding the expiration of their respective terms of service.

"The term of each officer so elected shall be computed from the first day of September next succeeding his election. The term of office of the governor and of other executive officers shall be computed from the fifteenth of January next after the election of the governor. No appointment or election to fill a vacancy shall be made for a period extending beyond the unexpired term. Every officer shall hold his office until his successor is elected or appointed, and qualified."

It is upon the last sentence quoted that Barham bases his right to the salary pending the contest.

Chapter 73, Acts of 1870-71, is in this language:

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the Governor be, and is hereby authorized to appoint a temporary Judge, Chancellor or Attorney-General in all cases where a contest has arisen, or may hereafter arise, in the election of any of said officers; and that they hold said offices and have all the power and jurisdiction pertaining to the offices to which they are respectively appointed until the contest is judicially determined and the regularly elected officers duly qualified and commissioned; and that they be, and are hereby clothed with the same power, and shall receive the same compensation as is allowed said officers in other cases, to be paid out of the State Treasury upon a warrant of the comptroller."

As to the intent of the Legislature in enacting this statute, the court, in Morrison v. Gower, said:

"It must be read and considered in view of the objects designed and the purpose intended by the Legislature, for the intention of the Legislature is controlling. The object of the Legislature was to require the appointment of a temporary judge to preside in the state courts while the judge otherwise authorized to hold over is rendered incompetent in consequence of his involvement in a litigated contest over the office. It would seem that, if the incumbent is not engaged in the contest and not interested in the result of it, the temporary appointment is unauthorized."

It appears from our reports that several such contests were pending when this statute was enacted; and by its passage the Legislature declared the policy of the state to be that a circuit judge engaged in an election contest was incompetent to preside over the court, and that the Governor should appoint a successor to preside until the termination of the contest.

Article 6 of the Constitution deals exclusively with the judiciary, and provides that the term of a circuit judge shall be eight years, and his right to the office is guaranteed to him for that period. Article 7 relates to state and county officers generally, and provides for filling vacancies.

At common law, if a successor to the incumbent did not qualify when the latter's term expired, the incumbent could not hold over, and a hiatus in government was thereby created. Under practically all of the authorities the hold-over provision was inserted to avoid this situation. It often happened that the officer elect was unable to complete his...