Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-02-15

necessity include the entire article, an
therefore include the case of County tHdg
10 viii not do to limit The meaning of Il
word aherein, to the cases ofthe Snpren
Judges, Circuit judges and ChancellOrs,
to which the time and manner Of notice
specification this would exclude I'll
cases of the Judges of the Common La
and Criminal Courts provided for in sectio
30S. We conclude; therefore, that I'll
Governor was directed by the express la1
guage of section 312, to order elections i
cases Of vacancy in any of the Offices meI
toned In the article, and that this include
| County Judges; and that the time of Oh
notice must be ascertained by reference t
section S24, which is not inconsistent there
with.
We think The i5Fce of this positive Lar
guage cannot be overthrown by section 50
| which declares that all special elections fo
county officers shall be ordered by the she
riff; to do this it Is assumed that count
Judge is county officer, within the mean
ing Of this section. If this were true, /
would not follow that this general provi
sion would defeat the positive and specia
provision before referred to, that this cleo
ton shall be ordered by the Governor. Blu
we are by no means satisfied that a Count,
Judge is a county officer in the meaning O
the section above. 1t is true, that in th.
cases of Moore VS.. the State, 5 Sneed anC
| SaHrans vs.. Ericsson, Cold. This cour
held that an election for County judge
held on the same day that other county
| officers were elected was not void on &C
count of the provision of the COnstitu
ton then in force that The election Of
Judges should hot be held upor
the same day that county officers
were elected, and it is true that in these
cases the Court say that County Judge is
a county officer. While this may be in one
sense true, we are unable to resist the con-
clusion that he is nevertheless a Judge, and
If he must necessarily be classed either as
county officer in the meaning of that term,
used in the Constitution, or as a Judge be-
longing to the judiciary department, we
should say that these are very strong rea-
sons for holding that lie belongs to the lat
ter class. His election is provided for in
an article of the Code devoted to Judges and
Chancellors. He is required to be commits
stoned and qualified as other Judges, and
holds his office for the term of eight years,
as they do. He exercises all the duties and
functions Of a Judge in a court, exercising
jurisdiction over a large amount of most
important business. Upon many subjects
he exercises concurrent jurisdiction with
the Circuit and Chancery Courts, and from
this court, in SONS cases, appeals and writS
OF error lie directly to the Supreme Court.
He may interchange with other County
Judges, and hold their courts in any coun-
ty for which County Judge is provided.
In causes in which they are incompetent,
Judges Of other courts may preside in his
court. The peculiar jurisdiction they ex-
ercise is not in all respects the same that is
exercised by other Judges, but an equal
difference exists between the jurisdiction
and powers exercised by Circuit Judges,
ChancellOrS ard Judges of Criminal and
other courts. The general power to
interchange with other Judges has not
been extended to County Judges, still they
are nevertheless Judges, whose powers and
duties are Of the most important character
and we are by no means prepared to say
that they must be classed for all purposes
as county offices as contra-distinguished
from judicial offices.
We conclude, therefore, upon the con-
'tructiGn of the statutes before referred to,
hat upon the happening of a vacancy in
he Office of County Judge, it was the duty
Of the Governor to order an election TO fill
the vacancy, and in the meantime to APP
point some suitable person to fill the office
until the election was held. 1t is not in
sisted, as we understand the argument,
hat there was any power in the county
or elsewhere, to make the Temporal
ry appointment, previous to the constitution
DflS70. 1t is true, that as the election might
be held upon twenty days notice there was
not the same necessity for making tenn
pOrary appointment as in other cases, but
it will be seen that the power to make such
an appointment rests upon the same au-
-hOTityi as the power to fill a vacancy in any
other jud9eShip-and we must either as
sumo that the power to make the appoint
ment was not vested anywhere, or else it
was vested in the Governor, for the author
ty to make the appointment clearly did not
Exist in any other power, and the power
nay be clearly held TO be given by the stat
Ites before referred to, without any violence
70 their natural and plain meaning of the
words used.
This view is strengthened by the fact,
hat the commission of the Judge must be
ssued by the Governor.
This then we think was the state of the
aw at the time Ofthe adoption of the Con-
3titution of 1870. The important change
u this respect, made by the new Constitu-
ion is that, it abolished special elections for
he filling Of vacancies. The vacancy cannot
De filled by an election until the next bien-
NAL election for civil officers, and the result
S, that when an appointment to I'LL such
vacancy is made, instead of holding until
an election is advertised and held, they hold
.he Office until the next biennial election
for civil officers. So the length
Of time the appointee may
hold the office is greatly exteI ded.
Section of Article N of the Constitu~
ion Of 1870, provides that cal laws and or
finances now in force and in use in this
State, not inconsistent with this COnstitu-
ion, shall continue in force and use until !
hey shall expire or be altered or repealed |
by the legislature So we think it clear
hat if the power existed in the Governor |
70 make this appointment previous to the |
adoption of the new Constitution, that
power still remained, unless it was taken
away by the last seCtiOn-SectiOn II, Ar
,icle Kin these words: "NO county Of
ice, created by the Legislature, shall be
filed otherwise than by the people or the
County Court
1t is here again argued, upon the author
ty Of the cases before referred to, that
County Judge is county officer within the
meaning of this section, and, therefore, the
office cannot be filled otherwise than by the
people or the County Court. It may per-
haps be safely assumed that this section ap-
plies as well to county offices previously
created by the Legislature, as those after
wards to be created, where not otherwise
expressly provided for in the Constitution.
But, as we have already said, if the appli-
cation of this section is to be determined !
alone upon the question whether a County
Judge is to be classed as a county officer"
within the meaning of the Constitution, or
IS belonging to the judiciary department,
we do not think the former proposition at
ali clear.
The Constitution, Art. VII, Sec. l, desig-
mates certain county officers, and provides
for their election and the filling OF vacancies !
in their otfices-theSe are, the Sheriff,
Trustee, Cororer, Register-these are clear !
y county officers proper. Their term of
office, except in the case of the Register, is |
,wo years, the Registers term is four years. |
They are not required to be commissioned |
)y the GOVernOr-their dUties are DuralV /