Duncan v. Rhea County , 199 Tenn. 375 ( 1955 )

Mb. Justice Swepston

delivered tlie opinion of the Court.

The only question involved in this case is the constitutionality of Chapter 570 of the Private Acts of 1953, which is a simple repealing Act undertaking to repeal Chapter 868 of the Acts of 1949, which established a Court of General Sessions for Rhea County, Tennessee.

The original bill was filed in this cause by Harold Duncan seeking a declaratory judgment adjudging his right as the incumbent Judge of said General Sessions Court for Rhea County to continue in and hold said office until September 1, 1958. Pursuant to that end the bill charges that said Chapter 570 of the Acts of 1953 is unconstitutional for the following reasons: That (1) it.violates Art. I, Section 8, of the Law of the Land provision; (2) Art. VI, Section 1, the Judicial power provision; (3) Art. VI, Section 4, providing for the election of Judges and among other things, fixing the term at eight years; (4) Art. VI, Section 6, providing for the removal of Judges and Attorneys for the State; (5) Art. VI, Section 7, prohibiting the increase or decrease of a Judge’s compensation for the term during which they are elected.

The bill alleged that said Chapter 868, Private Acts of 1949, which created the General Sessions Court for Rhea County prescribed the jurisdiction of said Court and provided that the jurisdiction powers and authority shall be co-extensive with Rhea County and shall be the same as provided by law for Justices of the Peace; that the Court have original jurisdiction of all cases coming within the terms of Part III, Title 8, of the 1932 Code of Tennessee, Sections 10269-10309, as amended, the same being the Juvenile Court; the Court be vested with and shall exercise the judicial authority conferred upon the County Judge or the Chairman of Rhea County, as set out in Code sections of the Code of Tennessee of 1932, and the County Judge or chairman was divested of all such jurisdiction and authority except in his capacity as fiscal head and agent of the county, it being left to the County Judge or Chairman to preside over the County Court and to look after the county finances and general operation of the county business.

It is averred that the effect of Chapter 570 of the Acts of 1953, repealing said General Sessions Act undertakes to abolish petitioner’s term of office and restore the duties of this office to the Chairman of the County Court. It is further alleged that the office has not been abolished but is a means of legislating the petitioner out of office, changing the name of the office and leaving his duties intact. Petitioner alleges that he has a vested property right in his term as Judge for 8 years and that said repealing Act, therefore, violates the Law of the Land provision of the Constitution above referred to.

Rhea County filed a lengthy demurrer to the bill which demurrer for the purpose of this opinion was in substance to the effect that said repealing Act was a perfectly valid Act, so that the office of General Sessions Judge for Rhea County was non-existent after September 1, 1954, the effective date of the Act; that of a valid law complainant cannot successfully complain or rely upon any alleged plan or scheme to legislate him out of office; nor can he claim any property right or compensation or salary for any further services in an office that has been abolished; that upon the effective repeal of said General Sessions Act, the functions of a General Sessions Court for Rhea County were by the general law redistributed to the sources from which they had come, to wit: that the existing regular chairman of the County Court, the existing regularly elected Justices of the Peace, and to all others without any further Acts of the Legislature to create any offices or officers.

The trial court held that said repealing Act was unconstitutional for the reason that it falls within the principles announced in State v. Leonard, 86 Tenn. 485, 7 S. W. 453, and State ex rel. v. Link, 172 Tenn. 258, 111 S. W. (2d) 1024, on the theory particularly that there could be only one General Sessions Court Judge for Rhea County.

Counsel have favored the Court with splendid briefs and there is a temptation on the part of the writer to refer in detail to a great deal that is said therein. However, to do so would unduly extend this opinion.

We think it clear that the facts of those cases have no application to the instant case. Judge Cook’s opinion, however, recognizes that unless a Court or a system of Courts, such as the Circuit and Chancery Courts, is protected by the Constitution, the Legislature may redistribute the business of the Courts for the purpose of economy and efficiency, and when such a Court is abolished it operates to vacate the office of the Judge who presided over the same. General Sessions Courts are not mentioned in the Constitution, but are simply such an inferior Court as the Legislature has the power to create or to abolish. There not only can be but there are more than one General Sessions Court Judge presiding over two divisions of the Court, Dayton Division and Spring City Division, but at any time the Legislature saw fit it could create a second General Sessions judgeship. Oin the other hand, there can only be one County Judge or one Chairman of the County Court for any one county. The distinction is pointed out by Judge Cook in his quotation from the Judges Cases (McCully v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567) wherein it was said [172 Tenn. 258, 111 S. W. (2d) 1025]:

“ ‘The Leonard case [State v. Leonard, 86 Tenn. 485, 7 S. W. 453] applies only to a county judge, where only one can exist in a county, and where his functions and duties cannot be devolved upon another, and is different from cases involving circuit, chancery, or other judicial officers, who preside over a system of courts common to the whole state. In the former class of cases the jurisdiction and business of the abolished court must necessarily go to a judge created especially by the legislature to receive them. In the latter class judges are judges for the state at large, and the transfer is not of jurisdiction but of business, not to a judge specially created, but to a judge already elected by the people, and clothed with authority and jurisdiction to act.’ ”

In the instant case the repealing Act does nothing but repeal the General Sessions Act. It does not purport to devolve the duties of the General Sessions Judge upon any other official. It does not undertake to create any new office or officers. It simply leaves it to the general law by becoming again operative to restore to those officers and Courts that which had been taken from them by said General Sessions Act. The case most nearly analogous to the present case is State ex rel. Tyler v. King, 104 Tenn. 156, 57 S. W. 150. The two syllabi cover the case. The first one reads: “Acts of 1899, Ch. 302, which repeals the statutes that had created special Chancery and Criminal Courts for Montgomery County, and had conferred jurisdiction upon the County Judge to hold same, and had given him a salary out of the State Treasury for that service, is constitutional and valid, and has the effect to abolish said special Courts, and to terminate the jurisdiction and salary of the County Judge as regards said Courts, hut not as County Judge proper, although no express provision was made for the holding thereafter of the Chancery Courts of said county.”

The second syllabus reads: “Upon express repeal of a statute that had itself repealed a former statute by implication, the latter statute is revived and becomes operative. Hence, upon repeal by Act of 1899 of Act of 1895, providing for a special Chancery Court for Montgomery County, the pre-existing statute, relating to the Chancery Court of that county, repealed by implication, or, rather, suspended by the Act of 1895, was revived, in the absence of other more recent provisions for said Court. ’ ’

As to the principle of repeal and revival see cases cited on the question of repeal by implication and revival in Robertson v. Freeman, 10 Tenn. App. 207, 210. The opinion quotes from Home Ins. Co. v. Taxing District, 72 Tenn. 644, as follows:

‘ ‘ Strictly speaking, a new statute does not repeal an old statute however inconsistent with it. It is a mere form for expressing the result to say that the one repeals the other by implication. The prior Act is not repealed but rendered inoperative, and this is made plain by the fact that a direct repeal of the latter Act, without any reference to the former, will, by a rule of common law, give efficacy to the former. It was precisely because the old Act never was repealed that it thereby became operative. It is a convenient, though inaccurate use of language to say that the new law repeals the old, and that the repeal of the new law revives the old. More properly the new Act is an obstacle to the operation of the old Act, which obstacle is removed by its passage.”

It -would, therefore, seem to be clear that Chapter 570, Private Acts of 1953, is a valid and constitutional statute and that the effect of same is to abolish the office of Judge of General Sessions for Rhea County as of September 1, 1954, and to deprive the complainant of his right to demand and receive a salary after that date.

Appellee, Harold Duncan, for the first time now raises the question in his brief that Chapter 570 -of the Acts of 1953, is invalid for another reason. That is, the Act was by its terms, to take effect September 1, 1954, but before that date there was an amendment to Art. 11, Section 9, of the Constitution of Tennessee which became effective on the 19th day of November 1953, by proclamation of the Governor, which provides in part: “The General Assembly shall have no power to pass a special, local or private act having the effect of removing an incumbent from any municipal or county office or abridging the term or altering the salary * * ”

There is no merit in this suggestion. Whatever else may be said in this regard it is settled by the case of Wright v. Cunningham, 115 Tenn. 445, 91 S. W. 293, 295, that it is effective as provided by its own terms. The Court said in part, ‘ ‘ There is no doubt that, if a statute be perfect in form when it leaves the hands of the Legislature, that body, in passing it, having complied with all of the prerequisites and safeguards provided by the Constitution for the enactment of laws, such statute is a valid law, even though it does not take effect immediately upon its passage. *■ * * The statute is vitalized immediately upon full compliance by the Legislature with the requirements of the Constitution for the enacting of laws. This is one thing. The 'time when' it shall be the duty of the people to comply with its provisions is another; the latter depending upon the terms of the act itself. ”

It therefore seems clear that since this Act became a valid law on April 10, 1953, whereas the above amendment to the Constitution did not become effective until the 19th day of November 1953, and since said amendment does not purport to have any retroactive effect, the said Private Act1, 'Chapter 570, is in no way affected by said constitutional amendment.

The judgment of the lower Court is reversed and judgment will be entered accordingly.