Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-07-14
THE BEAUMONT-WALDRAN
IEEBROGLE0.
opinion Of Chancellor w. N.
Smith.
Am Injunction not ordered.

Chancellor w. NJ. Smith yesterday
delivered the following decision
state Of Tennessee ex rel. Burditt vs.. George
W. Waldran.
I snail not undertake Ii this case 70
give in detail the reasons upon which
my conclusions are based, but l shall
7riefiy state the conclusions, and thest
are:
let, That this proceeding Is authorized
by chap page 629 of the Code The
writ of quo warranto not being IN use il
this State, cd Msigs, Dig page S5s), q
bill In the Chanesry or Circuit COurp
under ssid chapter is the remedy for TIT
removal Of q public officer, who is Tile
gslly holding and exercising an office
And this spplies to Judges Of Courts a.
well as to other officers. ana inclined
to think, however, and believe / 81
held IN the case Of the State ex rel
Caldwell gs. Conner, that the bill sbouia
be filed by the Attorney General Code.
Sec S4I2, S4IS. The bill may be amended
In this respect if desired.
Cd, I ana of opinion that the MunicI-
nal Court is q superior Court in the sense
Sec. 1909 of the Code, and therefore,
that no person Is eligible to the Office
Of Judge OF said Court unless be
shall have been 3 citizen of this
State three years Immediately preceding
his appointment or election. 1t ia trus
said Court is not court of general juFis-
fiction as is the Circuit Court. Its juris-
Firtinn ia special and limited and it,
Judge has not some Of the powers which
The Judges OF other superior Courts have
IE Is an inferior COart in the sense of
sec. ], art. vi OF the Constitution, that il,
inferior to the Supreme Court, "a are tht
Circuit and Cbancery Courts. But it is
superior Ia the sense that no other court,
except the Supreme Court, can correci
it's errors. The Circuit Court is court
Of general Jurisdiction, and has power to
e0EsEct the errors Of inferior Jurisdiction
by appeal, and eertiorari, but it has no
such power over this Court. By see. 46
Of the act creating It, appeals and writ
Of error lie directly from it to the So
preme Court. 1t also has appellate juris-
dictioB, By appeal or ceFtioraFi, over
JUS ices.-jec. 80.
Then il the error OF this Court can only
be corrected by the Supreme Court, how
can it be inferior to any other court ex-
eept that? That it has not as great ju-
and that its Judge has not as
great powers IS some others, can make
no difference. See Gu this subject Ca
rUthers' History OF g Law Suit, sec. Z43,
ISL, inclusive, and authorities therein
quoted. It follows, therefore, that the
demurrer must be overruled, and the de-
PENDANT required to answer.
Right here, [ might stop; but this
would leave untouched the most fnnpor.
tant question, viz whether an iDjunc
ton should issue in such cases, and, If 80,
when? I have not had time to examine
into the practice on the writ of quo
wsTrsntO; but, if mistake not, there
was no restraint on the exercise of the
duties OF the office, in cases Of quo war
rantO, until a final determination thai
the defendant was illegally holding the
Office. Sd Blackstone, 2B3. And the
practice of the Court of New York on
in the nature of quo war
rante, does not authorize the Issuance o.
a preliminary Injunction until the ques-
ton is finally determined. Abbot's New
York Dig, vol. 9, page 36l.
That the Court has the power, in q
proper case, TO award an Injunction
under our Code, section 34I7, cannot be
doubted; but L think 1t equally certain
that an Injunction should not be granted
On the ex parte statements Of the bill.
The defendant should always be per-
mitted to ansWer. The duties of public
officers should be discharged. While
This is true 81 ell officers, il applies with
much greater force to the Judges
Suspend their functions and the
Courts are suspended. No receiver can
De appointed, no temporary officer Sc
ected, hence the case should be very
'trong-sO strong as to leave no doubt of
he necessity Of such action, before an
Injunction should issue. Even II the an
Wer should admit, or the proof disclose /
neligibility only, think an Injunction /
h0uld not issue because the acts of a /
lie factO judge are good until the Gues-
ion can be settled by final decree. But 4
yield to the force of the argument,
hat when the answer admits or the (
roof clearly disclOses, not only ineligi- Z
siity, but corruption or n18lfeasancS Ia .
flee, the Injunction power should inter. I
oss.
L would not be understood for d mo-
cent as holding that a judge may be .
under this chapter OF the code I
rom discharging his duties on the ground I
{ corruption Ia Office. The remedy for /
hat Is by Impeachment. But il a Judge
J illegally in Office be may be removed /
nder this chapter and If, during the
rOgress Of the cause, the Court should
g satisfied that he is illegally in Office,
I'D at the same time is discharging the
uties Of the Office corruptly, then an In
lnction should issue. The illegal hold
lg gives the power to issue the injune-
on, and the corrupt action is the rea-
IN why 1t should issus. hope I am
OF misunderstood on this important
nd delicate subject.
Itfollows from these views that an In
motion viii not be ordered now, though
le demurrer Is overruled.
Ia the order on the bill. when It was
TO me, l directed that the de.
,ndant should only answer that portion
I the bill which alleges his ineligibility.
am now Of opinion that he should
nswer the whole bill; and lis so ordered.
ne motion for an injunction may be re-
ewed ct some future day, fixing the
az so ss to give defendant reasonable
me to answer. Either party may In
-oduce proof on the motion.
WSL NJ SMITH, Chancellor, etc.