Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-12-13


COUNTY to he removed to Tracy City.
las reisoa asst .g.ied i.1r e.j3ini1., tie t'a-
PENDANT Metcalf from acting as Special
Judge, is, that he is not authorized to act
as Judge until sworn in by the complain
ant in his character of Clerk and Master.
This assumption is based both in the bill
and in the argument of compliments
counsel, upon section 1890 of the Code.
Upon turning to that section it will be
found only to provide for the compensation
of Special Judges. The reference intended
is to the act of'Jan. %, 1871, Oh. 70, s. 2,
which is no part of the Code, but has been
inserted in Thompson & steger's revisal
under sections 1890 to 1880 for the con-
venience of reference. 1t is obvious that
the provisions of section of that act, pre-
scribing the oath to be taken and that it
shall be administered by the Clerk and
Master, are intended for the Special Judge
elected by the members of the bar at the
election to be held by the Clerk and Master
under that act. As matter of convenience,
the oath to be taken and the mode of adj
miniStering it in the particular case are
modified to suit the EFFICIENCY. There was
no intention to change the general law,
which requires different oath for judicial
officers and before different functionary.
Code, 5 80 and 752.
Besides, the provision for taking the oath
is merely directory, and there cannot be a
doubt that even Special Judge elected by
the bar might, if necessary or convenient,
take the oath of Office under the general
law. Or, fol that matter, act without
taking the oath at all, so far as the validity
of his orders and DEGREES are concerned; the
only penalty being the pecuniary one fixed
by the Code, s 81. The complainant is,
therefore, clearly mistaken in supposing
that the defendant, Metcalf, was required,
as preliminary to the discharge of his
Judicial duties, to take the oath before him.
That part of the injunction which seeks to
restrain him from discharging those duties
until he shall have taken the oath of office
before the complainant, is, consequently,
clearly unauthorized.
The residue of the first branch of the in
junction seeks to restrain the defendant,
Metcalf, from making particular orders,
which are specified, in future, when he
shall, if ever, undertake TO act under his
commission. know of no law to authorize
such an injunction. 1t would be singular
anomaly, if an individual citizen could OBJ
tain an Injunction to restrain regular
commissioned judge from discharging his
functions in any case brought before him,
in which that citizens interests might be
involved, according to his best judgment at
the time the case is heard. That the Judge
of another Court should have the power to
issue such an Injunction cannot be con-
coded for moment. Each Judge is SUI
preme in his own sphere, and cannot be
restrained in the discharge of his functions
by the fiat of a brother Judge. The suit
Ors of his Court may be restrained proper
eases from proceeding before him, but no
such process can run against him. The
law takes for granted that he will "admin-
lister justice without respect to persons, and
impartially discharge all the duties incum-
bent upon him as Judge, to the best of
his skill and ability"
The Injunction, therefore, so far as it is
directed against the defendant Metcalf is
without authority, and must be dissolved.
The second branch OF the injunction is
to enioin the orders and DEGREES made by
the defendant Metcalf, when acting as spe-
cial Judge, against the defendant for con-
tempt of Court, and as regulatory of the
records, books, and papers of the Clerk and
Masters office, and of the conduct of the
OitIh anu AldSitl llllllStlis vi tOtiloC- tiCit
can be no doubt of the jurisdiction of the
presiding Judge to control the conduct of
the officers of the Court, and to punish
them for a disObedience of its orders.
Such power is absolutely essential
to the exercise of judicial authority, and
inherent in every court. 1t is, moreover,
expressly conferred in this State by the
Code, S4099, subs. 4, and S4lOG, subs.
and 3. So vital is this power to the re-
spectability, safety and existence Ofthejudi-
cial department of the government, that
it has been held that the judgment Of a
court in punishment for contempt is not
subject to revision by appeal, writ of error,
eertiOrari, or otherwise, although such
Judgment may be void on its face. Mar
tins case, Y, 456; MalOne's case, 3 Sn.,
413; State VS.. Galloway, ) Cold, 1926. The
remedy to test the legality of the imprison-
ment is by writ of habeas corpus. Cold,
326. And, no doubt, the validity Of a
Judgment for a fine may be tested by action
against the officer who undertakes to col
! lect it. But to cOncede that another Judge
may enioin such a judgment is to concede
not merely the power OF revision, but that
a Judgment may be attacked by new suit
instituted for the purpose, even When the
court has jurisdiction both of the subject
matter and the person; a position in con-
fict with every principle Of law, when the
matter Of attack is only what was before
the court when the Judgment was rendered,
and when the party making the attack ad-
mits that he had the opportunity to make
defense.
That part of the injunction which re-
| strains the execution Of the judgment made
| upon the proceeding Tor contempt cannot
be sustained, and must be dissolved.
The third branch of the injunction which
| has been granted in this case, is directed
against John G. Lockhart and others, COM
missioners appointed by the County Court
| to carry out its order for the removal
| of the county seat, and seeks to re-
strain them from discharging the du-
| ties devolved upon them by order OF
that Court. If they are the Commits
sioners of the County Court, acting under
| its orders, made as a Court, this Court has
no power to interfere with them. The ap-
| pliCation should be to the Circuit Court
| which is authorized to exercise a supervis
| Ory control over inferior tribunals, not tC
this court. Besides, the complainant has
not made the necessary parties to contest
the validity of their appointment, or Of the
objects for which they were appointed. The
removal of the county seat of a county is q
| matter in which all the citizens of tho
| county are interested, and their proper
| representative is the County Court. Ar
| Injunction upon these defendants as indi
! vidualS would be nugatory, for the County
Court might Immediately appoint othel
commissioners to execute their orders, anC
so on, al ipfnitlm. The complainant i!
not entitled to the process of injunction
until he brings before the court all thu
necessary parties TO enable the Court to de
eide upon the real question at Issue. Th'
Injunction. so far as these defendants arr
concerned. must also be dissolved.
These conclusions are arrived at withOu
considering the anomaly of an injunction
issued by person as clerk and master Wit
is also the party in whose favor the injunc
ton issues, and who is, as his bill shows, Ii
the custody of the sheriffupOn a judgmen
of the court of which he is clerk. | an
bound to assume the validity Of the judg
ment, the ground upon which the authont,
of the special Judge is questione'
being clearly untenable, and there not b'
ing before me the necessary parties t.
test the validity of the removal of the coun
ty seat TO Tracy City.
1t may not be improper to add that L an
clearly of opinion that the Court Of Chan
Gerry has no jurisdiction, at the suit
an individual, to revise the judgmen
of the County Court upon the ques
| II I,