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5

STATE AND COUNTY OFFICERS

Art. VII, § 5

issued was only to fill vacancies and for an unexpired term. State ex rel. Attorney Gen. v. Allen, 57 S.W. 182 (Tenn. Ch. App. 1900).

Where a statute (Acts 1903, ch. 424), redistricting a county provided that it should take effect on the first day of September, 1906, at which time the terms of the then incumbents of the offices of the justices of the peace expired, it was proper to hold elections to fill the offices of the justices of the peace in the newly created districts on the first Thursday in August, 1906, as provided by the constitution and statutes. Maxey v. Powers, 117 Tenn. 381, 101 S.W. 181 (1906); Heiskell v. Lowe, 126 Tenn. 475, 153 S.W. 284 (1912). But see Clemmens v. Cato, 36 Tenn. 291 (1856); State ex rel. Burns v. Clark, 38 Tenn. 369 (1858); Beasley v. Ferriss, 69 Tenn. 461 (1878).

Where Private Acts 1939, ch. 281 redistricted McNairy County and designated the persons who were to serve as justices of the peace in the new districts, such act was not rendered invalid by the failure to designate the term for which such persons were to serve since under the provision of Tenn. Const., art. VI, § 15 (repealed) providing for the election of such officials by the qualified voters of their district the officials would only serve until the next general election as fixed by this section. Swaim v. Smith, 174 Tenn. 688, 130 S.W.2d 116 (1939).

Where county election commission omitted office of justice of peace for municipality in general election due to practice of voting for office in October instead of August as provided by this section of the constitution there was no election hence chancery court was entitled to declare that person who was issued a certificate of election on basis of six write in votes at general election was holding office without authority, as proceeding was not an election contest but a proceeding to determine right of defendant to hold office, since chancery court was not required to look behind election returns to determine proceeding. State ex rel. Bryant v. Maxwell, 189 Tenn. 187, 224 S.W.2d 833 (1949).

11. —Constables.

A vacancy in the office of constable may be filled, under § 8-1005 (now § 8-10-105; subsequently repealed), by an election by the people, held on the same day and at the same time with any other election, as, when the election for governor of the state, and members of the general assembly is held. Beasley v. Ferriss, 69 Tenn. 461 (1878).

Constable, who was elected in 1948 and furnished bond, and who was reelected in 1950 and continued to pay premiums on bond was covered by the bond since he continued to hold office until a successor was elected and qualified. Garner v. State ex rel. Askins, 37 Tenn. App. 510, 266 S.W.2d 358 (1953).

12. Incumbent Holding Over.

The provision in this section that ‘‘Every officer shall hold his office until his successor is elected or appointed, and qualified’’ prevents the termination of office of the incumbent until a successor is elected or appointed, and qualified, but the continuance in office is only to operate until the appointive or elective power acts, and appoints or elects another. The incumbent’s holding over under this provision does not give him any indefeasible right to the office. In re Baldwin, 54 Tenn. 414 (1872). But see State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

The constitutional provision that ‘‘Every officer shall hold his office until his successor is elected or appointed, and qualified’’ was probably intended to meet a case, where for any reason there is a failure to elect or appoint any officer at the proper time, thus continuing the former officer in office and lengthening his term. In that view, the implication is clear that an ‘‘election or appointment,’’ after the regular time is necessarily contemplated and recognized by the constitution. State ex rel. v. Anderson, 84 Tenn. 320 (1886).

and so certified to those authorized to fill vacancy or order new election is inapplicable where incumbent holds over until his successor is elected and qualified, there being no vacancy. Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (1924).

County superintendent who held over after expiration of his term, under void law attempting to extend his term from two to four years, held under provision of this section for continuation in office until successor is chosen. State ex rel. Tidwell v. Morrison, 152 Tenn. 58, 274 S.W. 551 (1925).

Under this section, county judge may hold over beyond his term until election and qualification of his successor as the de jure incumbent, and, as such, may sue in his own name to enjoin interference from an illegally appointed claimant. Morrison v. Gower, 154 Tenn. 624, 288 S.W. 731 (1926).

Where an election of juvenile court judge was void, the incumbent was entitled to hold office until the position was filled by the county courts election of an interim judge. Stambaugh v. Price, 532 S.W.2d 929 (Tenn. 1976).

With respect to public offices that cannot be identified with a particular incumbent, there is no holding over beyond the end of the term. State ex rel. Wyrick v. Wright, 678 S.W.2d 61 (Tenn. 1984) (at-large positions).

Ordinarily, where the incumbent holds a specific and identifiable office, the death of an elected officer before qualifying for office does not create a vacancy in the office that can be filled by appointment or otherwise, but the incumbent continues in office until his successor is elected and qualified. State ex rel. Wyrick v. Wright, 678 S.W.2d 61 (Tenn. 1984).

13. —Displacing Holdover.

The holdover provision in this section, being for the benefit of the public and to prevent interruption in the public service, is not violated by an act providing for appointment of a temporary judge during contest in election for that office, it never having been intended by this section to deny the general assembly power to prevent a judge from prolonging his tenure of office by his own act of bringing any ill-advised election contest. After appointment of temporary judge following expi- ration of term, incumbent, candidate for reelection, could not remain in office during contest or draw a salary. Graham v. England, 154 Tenn. 435, 288 S.W. 728 (1926). See also State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274 (1930).

But see Morrison v. Gower, 154 Tenn. 624, 288 S.W. 731 (1926), holding that the reasons referred to in Graham v. England, supra, as disqualifying a circuit judge engaged in a contest over the office, do not apply to county judges, and that, by looking to the object clearly intended and by reference to the context, the act involved in that case appears not to have been intended to include county judges.

Where township school commissioners hold over after expiration of the term for which they were appointed, they have no such vested right in such office as will deprive the general assembly of the power to legislate them out of office (Private Acts 1929, ch. 897; Private Acts 1931, ch. 104; Private Acts 1935, chs. 128, 188). Kimsey v. Hyatt, 169 Tenn. 599, 89 S.W.2d 887 (1936).

14. —Temporary Appointee.

Where sheriff was appointed by county court to fill vacancy, his right to the office terminated at the end of the unexpired term for which he was appointed, and the sheriff elected for the succeeding term having died before taking office, the office could be filled by another appointee of the county court. State ex rel. Kenner v. Spears, 53 S.W. 247 (Tenn. Ch. App. 1899).

The constitutional provision that ‘‘Every officer shall hold his office until his successor is elected or appointed, and qualified’’ applies to official terms that end by their own limitation. The purpose of this provision is to prevent a hiatus in the office and a suspension of the performance of the duties thereof, and to designate some one to perform the public duties, for which the offices were created. This provision does not apply so as to authorize the general assembly, by statute, directly or by implication or inference, to extend the term of office of an incumbent in the office of county attorney created by statute for a certain county. State ex rel. Cummings v. Trewhitt, 113 Tenn. 561, 82 S.W. 480 (1904).

The clerk of a county board of road commissioners, being the de jure officer by virtue of his right to hold over under the constitution where the election of his intended successor is void, is entitled to serve in the office and to take all of its emoluments. Hogan v. Hamilton County, 132 Tenn. 554, 179 S.W. 128 (1915).

Code provision that when an election is null it shall be declared void

When an appointment is to fill an unexpired term, there is necessar- ily, under this section, a vacancy at the end of the term, because the appointment extends only that long; but the appointee must, under the constitution, continue to discharge the duties of the office until someone is chosen to fill the vacancy as an officer holding over, but not as one holding under a prolonged term, as where an officer is elected for a definite term and until his successor has qualified. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

Where general assembly’s election of one of its own members to fill vacancy in board of election was void as violative of Tenn. Const., art. II, § 10, a member of the board appointed by the other two members, before the general assembly convened, held over thereafter under this section and statute providing for continuation in office until election and qualification of successor. State ex rel. Carey v. Bratton, 148 Tenn. 174, 253 S.W. 705 (1923).

Where two of three trustees on school board for special school district resigned and defendants were appointed by remaining member to serve

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