Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-16
SUPREME COURT DECISIONS.
December Term - Nashville,
ss 1870.
Joseph ID. HeiskelE, AttorneY-G en-
eral and Reporter.
No. 213.

Joseph lib. HeiskeIi, Attorney-Ge en-
erai and Reporter.
No. 2oS.
Tbeo Pope, Jos. W. Glenn, Hzqes Arnold, Jus
tees, etc. ct ais. va Fogstsr Phifer Josiah VIII
hams and Thos. jones, Com's'r., etc.
Concluded
In these various provisions are certain
ly contained clear and unequivocsl con-
temporary view of the provisions of the
constitution of 1884, referred TO, as one
of the coDstitutionslly continuing institI-
tons, existent at the time of its adoption,
the assemblage of the Justices of the
Peace, in County Courts, charged with
the election of the officers above referred
TO, and as a matter of course, with other
duties sppertaining to and annexed by
law to their assembled organization,
known as the County Court. In other
words, the legislature that assembled i'm
mediately after the adoption or the con-
stitution of 1884, construed that instru-
ment as recognizing and perpetuating
what was known before as the County
Court, and that certain duties were impos-
ed on said body by the constitution, which
necessarily implied and demanded its con-
tinued existence. Mr.. Cody nj his admi-
rable work on constitutional limitation,
page 81, layes down the following sound
principles applicable to this question:
'Contemporaneous construction may con-
sist simply in the understanding with
which the people received it st
the time, or in the acts done
under it in operation, and which
necessarily assume that it is to be con-
strued in particular way. In the first
case it can have very little force, because
the evidence of the public understanding,
when nothing has been done under the
provision in question, must always be
necessarily vague and indecisive. But
when there has been practical construc-
| ton, which has been acquiesced in for
considerable period, considerations in ia
vor of adhering to this construction pre-
sent themselves to the courts, with a
| plausibility and force which it is not easy
to resist. Indeed, when particular con-
struction has been generally accepted as
correct, and especially when this has oc-
CURED contemporaneously with the adop-
1 ton of the constitution, and by those
who had an opportunity to understand
the intention of the instrument, it is not
| to be denied that strong presumption
| exists that the construction rightly inter
prets the intention"
From this view of the case, we are led
to the conclusion that the constitution Ia
the articles cited, looked to the continued
existence of this assemblage of the JUS
| tees of the Peace of the county for the
| performance of the duties therein i'm
posed, and that it was recognized as an
| assemblage representing the corporate
existence of that constitutional division
| of our State known as a county, and
l that this institution in this aspect
| of it, must continue until abro-
gated by the action of the people in
| changing the constitutional provisions re
| ferred to.
There are other provisions of the con-
| stitution that we think might probably
he refarrA5 tn a., bearing the question;
such as the provisions of art 2, sec. 90,
giving the Legislature power to authorize
counties and incorporated towns in this
State to impose taxes for county and cor
poration purposes, etc.-involving the
idea of the action of a county as cor
porate body, and as such being repre-
sented by body of men answering to
| corporations, or representing the body
upon which the duty is imposed, or to
whom the privilege was granted. We
have but little doubt that in the provi-
| sions it was understood that the county,
as corporation, or quasi corporation,
was to be represented by the Justices in
county court assembled. In addition
| to the recognition by the Legisla-
ture that adopted the revisal of
our laws made by Messrs. Nicholson
& Caruthers, as shown in references to
| the election of the officers herein referred
to, it will be seen that the vaious acts Of
previous Legislatures, fixing the duties of
the County Court III reference to the local
| administration of the affairs of the coun-
| ty, are continued in fOrce-such as the
act of 1927, CHI. 40, S IA, authorizing the
County Courts to appropriate moneys for
the payment of jurors, the costs of cri-
minal prosecutions, to solicitors, to sher-
| ifs and clerks, for ex officio services and
making out tax lists, for repairing and
| taking care of courthouses and public
buildings, jails and bridges.
By s 10 of said act, "When the
County Court shall make sn appropriation,
not exceeding $50, One-third OF twelve of
the members shall be present, whose
names shall be ipcOrp rated in the order, "
and then it is provided, that in all appro-
priations hereafter to be made by any of
said courts, the vote shall be taken on the
same by ayes and nays, the clerk call
| ing and recording the name of each JUS
tice, together with his vote, and entering
his vote as given on the minu es, etc. 1t
will be seen here that the body is under
| stood to have been continued ia existence
after the Constitution of 1884, and that
| from these provisions, in all matters in
volVing taxation of the county, it is treat
ed as the quasi legislature of the county,
and the principle of responsibility for
their action to the people of the county,
whose money they should appropriate, is
carried out by the same means that fixes
such responsibility on the members of our
Legislature-thatis is, vote by ayes and
noes, recorded en- the minutes of the
court SO that the people, the constituent
cy, of these justices in county assembled,
could see from the record of their pro-
ceedings who had voted for, and who
against, each appropriation of their mo-
MES, and hold them responsible if the ap-
| preparation was not proper one.
1t is true that the act of 1885, Oh. 6,
was passed, establishing a court in each
county, TO be held by the Justices of the
Peace, TO be held on the first Monday in
every month, one-third or twelve of the
justices of the county to be a quorum
three of the said justices having power to
take probate of wills, grant letters of sd-
ministration, etc. We think this act was
probably passed to organize this particular
court, as a court under 5 of art.
9th of the Constitution of DISAPPOINTING
that "courts may be established to be
holden by Justices of the Peace" yet this
in no wise interferes with, or cOntravenes
the idea that the quarterly assembly of
the justices, known as the County Court,
with the peculiar powers and duties with
reference to the local interests of the
county, is to be superseded, or was 50 in
tended or understood to have been intend
ed at that time, by the provisions of the
Constitution of 1884.
These various provisions are sub3tan-
TALLY transferred to the Code of Tennes-
| aaa enacted Inv tho T,pUisIatI1ra in 1879