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Art. VII, § 5

EDUCATION

4

5. Election Beyond Unexpired Term.

The provision in this section of the constitution that ‘‘No appoint- ment or election to fill a vacancy shall be made for a period extending beyond the unexpired term’’ originated with this constitution, and was intended to obviate and remedy the judicial construction, given to the previous constitution, that an officer elected to fill a vacancy held the office for the full constitutional term, and not merely to the end of the term in which the vacancy occurred (as shown in the cases of Powers v. Hurst, 21 Tenn. 24 (1840); Brewer v. Davis, 28 Tenn. 208 (1848); Keys

  • v.

    Mason, 35 Tenn. 6 (1855); State ex rel. Burns v. Clark, 38 Tenn. 369

    • (1858)

      ; Ex parte Cross & Mercer, 84 Tenn. 486 (1886), overruled on

other grounds, 111 Tenn. 234, 80 S.W. 750 (1904); State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892); McCulley v. State, 102 Tenn. 509, 53 S.W. 134 (1899); Grainger County v. State ex rel. Mynatt, 111 Tenn. 234, 80 S.W. 750 (1903)); and to obviate the decision and holding that a statute providing that the officer elected to fill a vacancy should hold only for the unexpired term was unconstitutional (as was specifically held in the cases of Brewer v. Davis, 28 Tenn. 208 (1848); Keys v. Mason, 35 Tenn. 6 (1855)).

But under the new provision in this constitution, a vacancy in office is filled for the unexpired term only. Ex parte Cross & Mercer, 84 Tenn. 486 (1886), overruled on other grounds, 111 Tenn. 234, 80 S.W. 750 (1903); State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892); McCulley v. State, 102 Tenn. 509, 53 S.W. 134 (1899).

6. Statutory Failure to Specify.

When the length of term, merely, is fixed, with no set time for its beginning or no date for its ending, and no reference to an unexpired term, or to a vacancy in the term of office as distinguished from a vacancy in the office itself upon happening of a vacancy, the office reverts to the people or sovereign, and, when it is again vested, it is not for an unexpired term but for the full term. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

Private Acts 1941, ch. 220, setting up a new road law for Sequatchie County is unconstitutional because it fails to specify the term of office of the county road commissioners. Farmer v. Wiseman, 177 Tenn. 578, 151 S.W.2d 1085, 135 A.L.R. 1169 (1941).

The act also failed to specify when the term of the commissioners should begin. It was held that this section should be read into the act so that the term begin on Sept. 1, 1942. Farmer v. Wiseman, 177 Tenn. 578, 151 S.W.2d 1085, 135 A.L.R. 1169 (1941).

7. Terms of Judges and District Attorneys.

This constitution abolished special elections to fill vacancies in the offices of judges or district attorneys, except at the regular recurring biennial election for civil officers. Where an appointment to fill such a vacancy is made, the appointee is to hold until the next recurring biennial election for civil officers. State ex rel. Smiley v. Glenn, 54 Tenn. 472 (1872); Gold v. Fite, 61 Tenn. 237 (1872); McLean v. State, 1 Shannon’s Cases 478 (1875).

Where a new court is created and established to be held by a new judge, there can be no election until the regular recurring biennial election in August, and the judge shall be appointed by the governor to fill the vacancy until such next biennial election. McLean v. State, 1 Shannon’s Cases 478 (1875). If such a vacancy occurs within thirty days of the next biennial election on the first Thursday in August, the appointee is to hold until the first day of September after the second biennial election, and until his successor elected at such election is qualified. The constitutional provision that such vacancy shall be filled at the next biennial election recurring more than thirty days after the vacancy occurs clearly means that if the vacancy occurs within thirty days of such recurring biennial election, the vacancy cannot be filled at the next recurring biennial election, but at the one next after that, for the reason that the vacancy must be filled at the recurring biennial election to be held more than thirty days after the vacancy occurs, and not at the one recurring within thirty days thereafter. (Note in Shannon’s constitution.)

The terms of office of judges and district attorneys elected on the fourth Thursday in May, 1870, under Acts 1853-1854, ch. 32, and Acts 1869-1870, ch. 28, § 7, enacted in accordance with the amendment to the constitution ratified on the first Thursday in August, 1853, com- menced from their election and commission, and their commencement was not postponed by the provision in this section of the Constitution of 1870 to the first day of September, 1870, for the reason that this provision is confined to the officers elected on the first Thursday in August. The terms of judges and district attorneys elected on the fourth Thursday in May, 1870, were computed from the first day of September, 1870, and continued for eight years from that date; and until their

successors were elected and qualified. This results from the provisions of this section and the first section of the schedule to this constitution. Brinkley v. Bedford, 56 Tenn. 799 (1872).

All judicial terms are for the period of eight years; and each successive term begins on the first day of September, every recurring eighth year from the first day of September, 1870, and terminates eight years thereafter, and on the first day of September, every recurring eighth year from the first day of September, 1870. State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892).

Where district attorney general died in the forenoon of July 4 and the next biennial election recurred August 4, more than thirty days elapsed before the next biennial election and a vacancy existed in such office to be filled at such election. A successor appointed by the governor to fill the vacancy was not entitled to continue to hold the office as against a successor elected at the next biennial election. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120 (1938).

Where district attorney general was elected United States Senator in November but did not take oath as senator and resign as district attorney general until the following January 16, no vacancy occurred in the office until January 16. Successor appointed by newly inaugurated governor was entitled to hold office as against appointed of outgoing governor made on January 13. Kelly v. Woodlee, 175 Tenn. 181, 133 S.W.2d 473 (1939).

Constitutional and statutory provisions that every officer shall hold office until his successor is elected or appointed and qualified did not have effect of continuing justices of the peace in office for the purpose of determining a quorum of quarterly county court where certain of such justices had removed from the district where elected, others had been disqualified by holding other offices and one had resigned. Bailey v. Greer, 63 Tenn. App. 13, 468 S.W.2d 327 (1971).

One appointed to fill an unexpired term continuing to perform the duties of office after the expiration of other term would not hold as under a prolongation of his term, but only as a temporary holder of the office until an ascertained vacancy could be filled by designated authority. State ex rel. Barnes v. Smith, 199 Tenn. 459, 287 S.W.2d 63

  • (1956)

    .

  • 8.

    Extension of Terms of County Officers.

The terms of office of sheriffs and other county officers elected on the fourth Saturday (the 26th) of March, 1870, under Acts 1869-1870, ch. 62, were extended for the constitutional period thereof, computing from the first day of September, 1870, in accordance with this section and the first section of the schedule to this constitution. State ex rel. v. Wright, 57 Tenn. 237 (1872); Tatum v. Rivers, 66 Tenn. 295 (1874).

9. Election of County Judge.

The election of a county judge on the same day with other county officers, under a statute (Acts 1857-1858, ch. 38, § 2; § 824 of the Code of 1858) so directing, was not void under the amendment to the constitution in 1853, for the reason that the county judge was then held to be a county officer, and not a regular judge, in the sense of such amendment. Moore v. State, 37 Tenn. 510 (1858); Saffrons v. Ericson, 43 Tenn. 1 (1866); State ex rel. Smiley v. Glenn, 54 Tenn. 472 (1872).

It has been since held that a county judge is not a county officer, but is a judge of an inferior court. State ex rel. Smiley v. Glenn, 54 Tenn. 472 (1872); State ex rel. Puckett v. McKee, 76 Tenn. 24 (1881); State ex rel. Orr v. Leonard, 86 Tenn. 485, 7 S.W. 453 (1888); State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892); Johnson v. Brice, 112 Tenn. 59, 83 S.W. 791 (1903); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036 (1910).

Under the provision of this constitution, it is immaterial whether a county judge is a county officer or a judicial officer, insofar as the date of his election is concerned, since the election of judicial and other civil officers is to be held on the same day, namely, the first Thursday in August preceding the expiration of their terms of office on the first day of September. (Note in Shannon’s constitution.)

10. —Justices of the Peace.

Where federal court issued writ of mandamus requiring justices of Lauderdale County to make a levy to pay relator’s judgment, but 21 out of the 26 justices resigned for various and sundry reasons and sheriff failed to call for an election, the justices were in contempt of court, as they did not have an unrestricted right of resignation, since under this section of the constitution they held office until a successor was elected or appointed and qualified. United States ex rel. Watts v. Justices of Lauderdale County, 10 F. 460 (W.D. Tenn. 1882).

Governor’s commission to one as justice of the peace cannot be presumed to have been issued for a full term or to him generally as a justice, when the election pursuant to which the commission was

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