State v. Humphreys

• Decision Date: 03 July 1931
• Parties: STATE ex rel. LILLARD et al. v. HUMPHREYS et al. STATE ex rel. HUMPHREYS et al. v. LILLARD et al.
• Court: Tennessee Supreme Court

40 S.W.2d 405

163 Tenn. 20

STATE ex rel. LILLARD et al. v. HUMPHREYS et al.

STATE ex rel. HUMPHREYS et al. v. LILLARD et al.

Supreme Court of Tennessee.

July 3, 1931

Nos 1316, 1317.

Certiorari to Chancery Court, Polk County; T. L. Stewart, Chancellor.

Separate proceedings by the State of Tennessee, on the relation of Hoyt L. Lillard and others, as the new County Board of Education of Polk County, against W. B. Humphreys and others as the old Board, to enjoin them from acting as such, and by the State of Tennessee, on the relation of W. B. Humphreys and others, acting as old County Board of Education, against Hoyt L. Lillard and others, acting as the new County Board of Education, to enjoin them from acting as such. The cases were consolidated for hearing. To review the decree, the old County Board of Education brings certiorari.

Decree affirmed.

MCKINNEY J.

These causes were consolidated for hearing. The first bill was filed by the new county board of education against the old board, enjoining them from acting as such. The second bill was filed by the old board against the new, seeking the same relief. The chancellor sustained a demurrer to the second bill and dismissed it. He also granted temporarily the relief prayed in the first bill, but declined to grant an appeal. Thereupon the old board filed a petition for writ of certiorari, which has heretofore been granted and argument heard. In granting the petition it was said by this court that the decree entered by the chancellor grants all the relief prayed for in the first bill, and is therefore in effect final as to each cause. Counsel do not question this holding, but agree that the causes may be determined upon their merits.

The record presents the single question as to the power of the quarterly county court of Polk county to remove members of the county board of education for failure to properly discharge their duties, and to appoint their successors. Such action was taken by the county court in this cause after a full hearing.

Section 9 of chapter 120, Pub. Acts of 1921, is as follows:

"That any of the members of the said County Board of Education may be removed from office for incompetency, or failure for any cause, properly to discharge their duties, by a majority vote of persons constituting the Quarterly County Court."

This is express authority for the action taken by the court. It is insisted, however, that the members of the court who voted to remove the old board were disqualified because they preferred the charges against its members. It is well settled that a judge who is personally interested in the outcome of a suit, or who is related to any of the parties within the prohibited degree, is disqualified to hear and determine a case. It is not claimed that the members of the county court had any personal, as distinguished from official, interest in the case, or that they were related to the parties. This court could prefer charges of unprofessional conduct against a member of the bar and pass upon his guilt or innocence, provided they acted officially and not personally. So also a board of medical examiners may prefer charges against a licensed physician and deprive him of the right to practice his profession. Likewise a board of education may prefer charges against a teacher and upon a hearing remove him. It is generally held that, where the interest of the judge is general; for example, where the suit involves taxes and he is a taxpayer, and to that extent interested, he is not disqualified. Another rule applicable to these causes is thus stated in 15 Ruling Case Law, 541: "It is well established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where, if applied, it would destroy the only tribunal in which relief could be had."

It is further said that the act of 1921 is repealed by chapter 115, Pub. Acts of 1925. This latter act does not purport to expressly repeal the former. Section 38 provides: "That all laws and parts of laws in conflict with the provisions of this Act be and the same are hereby repealed."

It is the insistence of counsel for the old board that the act of 1921 was repealed by the act of 1925, both by operation of the above repealing clause and by the general rule that an act purporting to cover an entire subject repeals by implication all former statutes upon the same subject. The former act is limited to the creation of boards of education in the several counties of the state, while the act of 1925 deals generally with the school system of the state, is much more comprehensive in scope, and covers many phases of the system not found in the former act. The act of 1925 provides for a county board of seven members, just as the act of 1921 did, and the duties of the members of the board, as set forth in the two acts, are substantially the same; but the act of 1925...