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Art. VII, § 5

EDUCATION

2

provides that the state pay the salary of the office. State ex rel. Winstead v. Moody, 596 S.W.2d 811 (Tenn. 1980).

9. Constitutionality of Statutes.

When properly construed there is no conflict between § 5-5-102 and Tenn. Const., art. VII, § 2. Both the constitutional provision and the statute provide for the vacancy to be filled by the legislative body. Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).

Section 49-2-202 is constitutional to the extent of the temporary appointment to a vacancy. Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).

There is no constitutional infirmity in § 5-6-103 (obsolete), providing that should a vacancy occur in the office of county judge, in these counties wherein the judge is temporarily serving as county executive: (1) If a vacancy occurs prior to the qualifying date for the election of a county executive, the county legislative body shall appoint a county executive to serve until a county executive is elected in the regular August election; and (2) if a vacancy occurs after the qualifying date for the election of a county executive, the county legislative body shall appoint a county executive to serve until a county executive is elected in the next succeeding general election or other county-wide election in such county. Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).

Irrespective of the language used, action of the general assembly, acting in order to avoid having duplicating offices, and purely as a transitional measure, giving a county judge authority and charging him with the duties attendant upon the office of county executive is a constitutional orderly transition. Marion County Bd. of Comm’rs v. Marion County Election Comm’n, 594 S.W.2d 681 (Tenn. 1980).

10. Special Elections.

A special election would not be conducted pursuant to Tenn. Const., art. VII, § 2, but by virtue of the implied recognition that such elections are proper under Tenn. Const., art. VII, § 5 and art. IV, relating to elections. McPherson v. Everett, 594 S.W.2d 677 (Tenn. 1980).

DECISIONS UNDER PRIOR LAW

ANALYSIS

  • 1.

    Meaning of terms.

  • 2.

    Quarterly county court impliedly recognized as constitutional

court.

  • 3.

    Vacancies filled by county court.

  • 4.

    Terms of persons appointed.

  • 5.

    Holdovers.

  • 1.

    Meaning of Terms.

The word ‘‘justices’’ used in this section of the constitution means the justices of the peace of the county assembled in the quarterly county court, for it is in such collective capacity that they must make the elections required of them. Pope v. Phifer, 50 Tenn. 682 (1871), overruled on other grounds, 126 Tenn. 106, 148 S.W. 229 (1912); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912).

2. Quarterly County Court Impliedly Recognized as Constitu-

tional Court. The quarterly county court is impliedly recognized and continued by the provision in the preceding section authorizing the justices of the peace to elect a coroner and ranger; and by the provision in this section authorizing the justices to fill the vacancies occurring in the offices of sheriff, trustee, and register; and by the provision (Tenn. Const., art. XI, § 17) that the county court may be authorized to fill county offices created by the general assembly; for these powers can be performed by the justices only when assembled in the body known as the quarterly county court. Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229 (1912).

3. Vacancies Filled By County Court.

The right and power to fill a vacancy in the office of clerk of the county court is vested in the quarterly county court, composed of the justices of the peace of the county, and not to the county judge or chairman of the county court. State ex rel. Johnson v. Campbell, 76 Tenn. 74 (1881).

It is competent for the general assembly to provide by statute that this power of filling a vacancy in the office of clerk, conferred by the constitution upon the ‘‘court,’’ when the filling of the vacancy in the office of the clerk of the county court is involved, may be exercised by

the quarterly county court composed of any prescribed number of the justices or by the county judge or chairman of the county court. In accordance with statutes enacted in pursuance of this power, when properly construed, the quarterly county court composed of the justices of the county, or three-fifths thereof as a quorum, is empowered to fill the vacancy in the office of the clerk of the county court. State ex rel. Johnson v. Campbell, 76 Tenn. 74 (1881). See §§ 5-512 — 5-516 (now §§ 5-5-111 — 5-5-114).

4. Terms of Persons Appointed.

Under the Constitution of 1834, a vacancy in the office of sheriff, trustee, or register, and clerks elective by the people, occurring subse- quent to an election, was to be filled temporarily by appointment until the next election for any of the county officers, when the office was to be filled by the qualified voters, and the person so elected to fill the office held for the full constitutional term of office, and not merely to the end of the term in which the vacancy occurred, and such term could not be shortened by statute. 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 (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); Redis- tricting Cases, 111 Tenn. 234, 80 S.W. 750 (1903); State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

The person appointed or elected by the quarterly county court to fill a vacancy in the register’s office holds only until the next regular election for county officers, and the qualification of the person elected by the voters. Tatum v. Rivers, 66 Tenn. 295 (1874).

But under the Constitution of 1870 (Art. 7, § 5), no appointment or election to fill a vacancy shall be made for a period extending beyond the unexpired term. 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); State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

Under §§ 1, 2, 5 of this article, where an appointment is made to fill an unexpired term, there is a vacancy at the end of such term, since the appointment was only for that time, though the appointee must continue to perform the duties of the office as an officer holding over, if another is not elected and qualified, and he does not hold as under a prolonged term, that is, for another full term, as in the case of an officer elected for a definite term and until his successor is elected and qualified. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

Where the length of term of an office only is fixed, with no set date for its beginning or 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, an incumbent appointed to fill a vacancy holds for a full term, and not merely for the unexpired portion of his predecessor’s term. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

5. Holdovers.

Under § 1 of this article, providing for the election of the sheriff for the term of two years; under this section, providing that if a vacancy occurs in the office of sheriff, subsequent to an election, it shall be filled by the justices; and under § 5 of this article, providing that the term of the officer shall be computed from the first day of September next succeeding the election; that no appointment to fill a vacancy shall be made for a period extending beyond the unexpired term, and that every officer shall hold office until his successor is elected and appointed and qualified, the justices in the quarterly court cannot appoint a successor to one who was elected sheriff, but died before qualification, since there can be no appointment unless there is a vacancy, and there can be no vacancy so long as the former elected sheriff holds over or is prolonged until the qualification of his successor; for the word ‘‘vacancy’’ is used in its ordinary sense as meaning empty of an incumbent, or without an incumbent. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (1915).

Sec. 5. Civil officers — Election — Vacancies. — Elections for Judicial and other civil officers shall be held on the first Thursday in August, one thousand eight hundred and seventy, and forever thereafter on the first Thursday in August next preceding the expi- ration of their respective terms of service. The term of

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