In re Knight ( 1879 )

McFarLand, J.,

delivered the opinion of the court.

On the 18th of June, 1879, W. H. Washington, District Attorney-General, presented to the Hon. Frank T. R,ied, Judge of the 8th Judicial Circuit, then holding the Circuit Court at Nashville, the report of the Grand Jury of Davidson county in regard to the bonds •of the county officers, and also produced the bonds of W. A. Knight, Trustee, and moved that said Knight be required to give other bonds, or that his office be declared vacant. An order was at once made and entered upon the minutes of the court for a subpoena to issue summoning said Knight to appear before the judge at 10 o’clock A. m., June 19, “then and there to enter into bond and surety according to law, or show cause why his office should not be declared vacant.”

On the day named (the 19th) Judge Reid was sick, but on the 20th said Knight appeared, and the motion was heard and a further order was made and entered upon the minutes of the court in which it is recited “that it appearing to the court that the four bonds purporting to have been made by W. A. Knight on the 1st day of March, 1879, from examination and inspection, and from the report of the grand jury (the said bonds having been filed before the court for examination and inspection according to law), and said report of the grand jury having been brought before the court by the Attorney-General, that they are irregular, have not been taken according to law, and 'are insufficient in amount/’ it is ordered that said Knight be granted until July the 1st to give new and additional bonds, and if he fail to appear before the judge at the court house on or before that day and -execute the required bonds, the office to be declared vacant. The amounts of the several bonds were specified in the order. It was ordered that Knight have notice of the order above set forth, and a copy thereof was issued ami served upon him the same day.

Knight appeared in court On and presented his bill of exceptions to the action taken upon the 20th,' in which the proceedings had upon 'that day are set forth, and the report of the grand jury made a part thereof, and it is further shown that Knight made a general objection to the reading of said report, but his objection was overruled. He then moved the court to be permitted to justify the sufficiency of the existing bonds, but the motion was overruled. The bill of exceptions was signed.

On the 1st day of July (the day named for Knight to give additional bonds) he appeared and tendered the four several bonds required by law, signed by himself and a number of sureties. At the same time the affidavits or depositions of Knight and his sureties as to their solvency were presented, and the judge, of his own motion, took the affidavits of several real estate agents as to the value of certain real estate owned by’ the sureties. To the consideration of the latter Knight excepted upon the ground that no notice or opportunity to cross-examine was given him, but the objection was overruled.

These proceedings seem to have occupied the time until the next day (the 2d of July), when the matter was taken under advisement. On the 5th the judge delivered a written opinion, in which he held that the sureties on the bonds tendered were insufficient, and declared the office vacant, and ordered that the county court be notified of his action. At the-same time he made an order correcting all former orders so as to insert the name of “Hon. Frank T. Hied” in the place of the words “thd& court,” wherever these words were used, so as to * show that the-proceedings were had not before the circuit court, but before Judge Reid in person. On the 7th of July Knight appeared before Reid and asked leave to make a motion in the matter, and thereupon moved to be allowed until July the 10th in which to give other sureties and complete the sufficiency of his bonds, but the motion was refused. On the 8th of July he-again appeared and presented the affidavits of certain persons who proposed to go upon the bonds, together with his petition, asking to 'add their names so as to make the bonds good, but Judge Reid, being of opinion he had no power to receive the application, denied the motion. Knight then presented his bill of exceptions, which was signed as a correct, or as it elsewhere expressed, a “pretty correct history of what took place,” the judge being of opinion, however, that it was not a case for a bill of exceptions. Knight then prayed an appeal to this court, which was refused. He then moved to have the- whole proceeding reformed and annulled, which was also, refused.. Thereupon Knight presented his petition, accompanied by a transcript of the foregoing proceedings, to one of the judges of this court, praying for a mandamus to compel Judge Reid to accept the bonds tendered, or in the alternative, for writs of error and supersedeas. The latter writs were granted (the judge to whom the application was made being of opinion that the questions presented were worthy of consideration by a full court), and the enforcement of the order of Judge Ried has been superseded. A motion has been made to discharge the writs as improperly granted, and the cause, upon its merits, has. been advanced and heard at the same time.

The errors assigned in the petition and in argument are numerous. The act of 1879, ch. 9, extends the time previously allowed tax payers to make voluntary payment, and upon the supposition that this extension might release the sureties of the trustees, such being the purport of the case of Johnson v. Hacher, 8 Heis., —, it is provided that unless the sureties appear and acknowledge their willingness to continue bound, a new bond shall be given on or before the first Monday of March, 1879, and in default of this the office should be declared vacant.

The bonds which Judge Reid in his first order ■declared insufficient were those given by Knight in compliance with this act (though the report of the grand jury, as we understand it, was not confined to these bonds). The first error assigned is, that the above act of 1879 is unconstitutional; 2d, that the .judge erred in receiving and acting upon the report of the grand jury because it was addressed to Judge Quarles, of the criminal court; 3d, in refusing to permit Knight to show that his bonds were sufficient,, notwithstanding the report of the grand jury; 4th, that by the law Knight had ten days from the first day of July (the day on which he was ordered to give the bond) in which to complete them; 5th, that the judge erred in considering the ex parte affidavits of the real estate agents as to the solvency of the sureties offered, and in determining the sureties insufficient; that the whole proceeding was a departure from the law, and void; that neither the circuit court or circuit judge had any jurisdiction of the matter. On the other hand, it is argued that this court Ijas no jurisdiction by appeal, writ of error, or otherwise,, to review the proceedings before Judge Reid, and consequently no power to supersede his orders. The solution of this latter question depends upon the nature- and character of the proceedings to be reviewed. If the proceeding was a judicial one before the circuit court of Davidson county in the ordinary mode in. which actions at law are conducted, then it is not. denied that an appeal or writ of error would lie to this court for the correction of errors. If, on the other hand, Judge Reid, acted only as the ministerial officer or agent of the State, then it is contended that this court has no revisory power over his action; or even if it be conceded that the proceeding was of a judicial nature, yet it is contended that it was a proceeding not before the circuit court as such, but before Judge Reid as a special statutory tribunal, con-stitnted for the purpose of determining matters of this character, and his decision was intended to be final. The duty of taking bonds from collectors of the public revenue is, by law, in the first instance, devolved upon the county court, and such officers are required to enter in the several bonds required by law with sureties satisfactory to that tribunal. Code, secs. 492-599. By the act of 1875, ch. 91, the office of revenue collector is abolished, and the duty of these officers devolved upon the county trustees, to be performed in a manner therein pointed out, and the trustees are required to enter into the bonds previously-required of the tax • collectors. By secs. 725-727 of the Code it is made the .duty of the clerk of the county court to produce before the judge of the circuit court at the first term after the bonds are executed, the bonds of all officers taken in that year, and it is made the duty of the circuit judge to examine them, and if, in his opinion, they have been taken according to law, he shall write upon them, “ examined and approved,” and sign his name thereto. If the judge be of opinion that the bonds have not been taken according to law, a subpoena is to issue for the-officer to appear before the judge immediately and enter into bond and security, and if he fail to do so-the office is to be declared vacant, and another election held in twenty days.

By sec. 5079 of the Code it is made the special duty of the grand jury to inquire into the condition of the bonds of all county officers with regard to their correctness and sufficiency; and by sec. 778 et seq., it is provided that all public officers who are compelled to give official bonds may be required by the court or officer whose duty it is to take or approve such bonds, to give additional security or new bonds,” in certain cases among others, “where the grand jury or a majority thereof certify the insufficiency of the original bond.” It has been argued that this last named section was intended to give the power to require new bonds to the county courts, and not to the circuit judge, but it was held to apply to the circuit judge in the case of ex parte Wickersham, 6 Col., 333, and as we have seen that by sec. 725, et seq., the circuit judge is the officer required to approve such bonds. The construction given in the Wickersham case is within the letter of sec. 778.

Judge Reid proceeded to act in the present case under the provisions of said last named section, upon the report of the grand jury, and the question is, wag the proceeding a judicial one before the circuit court according to the course of the common law? The fact that the motion was made before Judge Reid while sitting in open court, and that his orders were entered upon the minutes of the court, is to my mind not material. If the power conferred upon him was ministerial in its nature he could not make it judicial by the manner of its performance, nor could he in any wise change the nature of his powers or his acts with respect to their force and effect by discharging the duty in open court, or entering upon the minutes of the court the orders made by him. The powers conferred upon the circuit judge by the sections of the Code referred to are similar in their nature to the powers exercised by the county court in taking the bonds in the first instance. He must determine the proper legal form and terms of the bonds and the sufficiency of the sureties. He is the agent or officer of the State with whom the trustee and his sureties enter into their obligations. He accepts the bonds upon behalf of the State, or refuses to accept them if not satisfactory, in which event the law declares the office vacant.

To my mind it is not very material whether the sections of the Code in question be regarded as conferring the poT|er upon the circuit judge or upon the circuit court. The nature of the power does not depend upon this. We have seen the duty of taking the bonds in the first instance is conferred upon the county court in terms. This does not change the nature of the duty or the effect of the act when performed. If it were conceded that sec. 778 confers the power upon the circuit court instead of the judge, it by no means follows that the act, when performed, becomes a judicial proceeding subject to review in this court, as powers merely ministerial, or at least not judicial, may be conferred upon the circuit court. See Ex parte Gray, 9 Hum., 513; 8 Hum., 634; Carey v. Justices, 5 Sneed, 515; 3 Baxter, 362. But it seems manifest to my mind that it was intended to confer the power upon the circuit judge, not upon the 'court.’ ’

Secs. 779, et seq., point out the mode of the proceeding. The requisition to give the additional bond is to be in writing, and is to specify the time and place when the officer shall appear and give the bond. If a proceeding in the circuit court were contemplated it could not take place elsewhere than at the court house, nor at any other time than during a term of court. Nor is any mode of proceeding pointed out making it analogous to a judicial proceeding according to the course of the common law. But aside from this the very nature of the proceeding precludes the idea of its being reviewed for the correction of errors as judicial proceedings are reviewed.

It can hardly be contended that an appeal would lie from the refusal of the county cou^; to accept the bonds in the first instance, either because in the opinion of that tribunal the bonds were not in proper form, or because the sureties were insufficient, and that such appeal would take the course of other judicial proceedings. If so, the entire term of the office might be occupied in a litigation over the question of the form of the bond or the solvency of the sureties. If the taking the bonds of a public officer is to assume the shape of an ordinary suit at law, then endless delay and confusion would result. There would be no one in a position to rightfully exercise the functions of the office, the revenue would remain uncollected, and the public suffer irreparable injury. Again, after the bonds are accepted by the county court, as we have seen, it is made the duty' of the clerk of the county court to produce them before the circuit judge at the first tefm of the court held in the county after the bonds are taken, and it is made the duty of the judge to examine them, and if, in his opinion, they" have been taken according to law, he shall write upon-them, “examined and approved/’ and sign his name-thereto. But if not taken according to law, a subpoena is to issue instant'er requiring the officer to appear before the judge immediately and enter into bond and security according to law, and if the officer fail' ■or refuse to do so, the judge is to declare the office-vacant, and another election is to be held in twenty days, and the bonds of the new officer to be thus-elected are subject to the same proceedings. See secs. 725, et seq.

Now, it seems to me clear that the action of a-circuit judge, under these sections of the Code, cannot' be a subject of review upon appeal. The bonds are' to be presented to him, it is true, on the second day of the first term of the circuit court, because, as may be fairly inferred, this is the time the judge is certain to be found in the county, and probably the first time, as but few of the counties have a circuit judge residing within their limits. The circuit judge-is selected to discharge this duty because of his legal-knowledge, but although the duty is to be performed on the second day of the term, yet there is no requirement that the act is to be performed in open court, the officer is to have no notice of the proceeding in the first instance, and the records of the circuit court are not required to show any of the proceedings, • in fact any entry upon the records of the court would be wholly superfluous and nugatory. If the-judge finds the bonds to have been legally taken, he is to write upon them, “examined and approved/’ and sign his name thereto. Otherwise, he is to take new bonds or declare the office vacant. I am unable to see in this proceeding anything analogous to a suit at law, and I do not think the officer would have the right to appeal from the refusal of the circuit judge to write “examined and approved” upon the bonds and sign his name thereto. This duty is left to the judge, and his action was intended to be final — no ■ one else is authorized to perform it. And in the ■event the judge refused to approve the bonds, and new bonds, are offered and refused because, in the ■ opinion of the judge, the sureties are insufficient, I do not think the officer could appeal and review the de-cision of the judge upon this question of fact as other •strictly judicial proceedings are reviewed. I do not perceive any difference in principle between an attempt to review the action of the county court in refusing the bonds in the first instance, or the action of the circuit judge in refusing to approve the bonds or accept new bonds under the secs. 725 et seq. above ■considered, and an attempt to review the action of the circuit judge acting upon the report of the grand jury under sec. 778 et seq. as the functions exercised by the county court and the circuit judge in each in- . stance arc in their nature similar. Without refering at length to authorities, the case of Wade v. Murray, 2 Sneed, 50, furnishes strong authority for this conclusion. That was a contest over an election for, District Attorney-General, which the law provided should be heard and determined by the Chancellor of the division. In that instance the ease was heard and determined by a special chancellor appointed by the Governor upon the certificate of the regular chancellor of Ms physical disability. An appeal in error was prayed and granted to this court upon assumed error of law. It will be seen that the case was a much stronger one for the exercise of revisory power than the present, as the action of the chancellor certainly partook of a judicial character. This court, however, dismissed the writ of error upon the ground that the power to decide the contest was not conferred upon the chancery court but upon the chancellor as a special statutory tribunal, and no provision having been made for an appeal or writ of error, his determination of the matter was intended to be final. I understand the court to have been unanimous upon the question that no writ of error would lie from the decision of the chancellor to this court. In that case Murray had also applied to the circuit court for a certiorari to bring up the proceedings had before the special chancellor, which was refused, and from the refusal of the circuit court to grant the certiorari, an appeal in error was also prayed and granted, and this was also heard at the same time. The court was of opinion .that for some purposes the certiorari was a proper remedy in such a case. Judge McKinney (with whom Judge Caruthers concurred), holding that it would have been a proper remedy if there had been such a substantial departure from the course of proceeding pointed out by the statute as to render the proceeding void, but that it would not lie merely to correct errors, while-upon this last point Judge Totten dissented, holding that the certiorari might be resorted to for the correction of mere errors in the proceeding, but I do not understand that he dissented from the proposition that a writ of error did not lie directly to this court ■from the decision of the special chancellor. See also the reasoning of Judge McKinney in Cooper v. Summers, 1 Sneed, 456, and Judge Cooper in Ex parte Chadwell, 1 Tenn. Ch. R.., afterward approved by the court.

It is argued that this line of decisions may allow an officer duly elected and inducted into office to be summarily expelled without the hearing that, the law guarantees to other citizens in respect to their property rights, and it is supposed that there is a distinction between the case of an officer who has been once inducted into office, and one who has merely the right to be inducted. I do not think that in this respect any distinction exists. r That the officer has a •property in the office is not questioned, but his right ■cannot be exercised except upon complying with the correlative duty of securing the public against loss of the public' revenue.

All the above provisions of our statute are pa^ts of the same system, and must be construed and enforced as a whole. The acceptance of the bonds by the county court, and the induction into office, are subject to the approval of the bonds by the circuit judge under sec. 725, and the action of the grand jury and judge under sec. 778. Otherwise, if the -officer be inducted into office upon an insufficient bond, or one that afterward becomes so, all attempts to enforce the provisions of the statutes we are considering so as to compel the giving of a new and sufficient bond, would often prove wholly nugatory. If the proceeding be regarded as a judicial one, it would be an easy matter for the officer to delay its determination until- his term expires, and thus baffle all efforts to compel him to give the required security. The right of the public to security is at least equal to the right of the officer to his office, and the remedies for compelling the officer to give the proper bonds must necessarily be summary, otherwise they are utterly ineffectual. To allow these questions . to be settled by the ordinary course of judicial proceedings would be subversive of the public interest. This is well illustrated by the present case. Suppose we take jurisdiction of the case and review the action of Judge Reid. We might be of opinion that he erred in admitting testimony, or in rejecting sureties offered. If for these errors we should reverse a.nd remand the cause for further proceedings, it would be subject to all the delays incident to an ordinary trial to another review-in this court. In the meantime there would be no one properly authorized or under proper bonds to collect the public revenue. The interest of the State requires that some one should be in a condition to perform this public service, and under proper bonds. Eor the want of it the public interests suffer — the government itself might suffer irreparable injury.

But it is asked if we are to ignore the rights of the officer. The decision against him may be arbitrary and unjust, he may, in fact have tendered a good bond. The question, however is, who is to decide this? There must be a tribunal whose decision of the matter is final. Is there anything in the Constitution or law imperatively demanding that this question be decided by the Supreme Court? If the law of the land has constituted some other tribunal the sole judge of this question and provided for no appeal,, is it not final? When the question is decided by the tribunal whose decision the law makes final, it is. as much a determination of the right according to the law of the land, in the sense of the Constitution, as. if made by this court, whether this court would have-decided the question the same way or not. The lawmakers no doubt properly assumed that the tribunal appointed to perform this function was as likely to-decide properly as any other, and it would be very seldom that any injustice would be done an officer in-refusing good bonds. But if by possibility this should be done it is better that the one individual should submit to the wrong than that still greater evils should accrue to the public by an ^attempt to correct the errors.

If, however, an attempt should be made to remove an officer without authority or color of law, that is, if the judge so far depart from the mode pointed out by the statute as to render his action void, then, according to the case of Wade v. Murray, 2 Sneed, —, the remedy would be by certiorari to quash the proceeding .in the circuit court, that court having this jurisdiction, by virtue of its general re-visory powers, over inferior tribunals. That the circuit court- might be held by the same judge whose-proceeding is to be acted upon, though anomalous,, would not be a fatal objection.

Again, I should be of opinion that if the court or officer whose duty it is to take the bonds should refuse to act at all, that is, arbitrarily refuse to take any action, the remedy by mandamus would probably lie. If, however, such ti-ibunal should act and determine the bonds insufficient, then a superior court could not compel the acceptance of the bond upon the ground that, in its opinion the bonds were sufficient. It is-possible that for a malicious refusal of a ministerial officer to accept proper bonds, an action at law might be maintained, but as to this it is unnecessary to express any definite opinion. I conclude, therefore, that the writ of error was not properly prosecuted in this-ease, and therefore express no opinion as to whether or not there were errors in the proceeding, further than to say that if this were regarded as a judicial proceeding, I should be inclined to agree with Judge Turney in holding that it was error to admit ex 'parte testimony, and deny to Knight the right to cross-examine the witnesses; but not regarding it as a judicial proceeding, it is not necessary to consider these questions further I think, however, the action of Judge Reid was not void. Knight was, in my opinion allowed the ten days prescribed by the statute in which to give the bonds, that is, ten days after the peremptory order was made upon him of which he had immediate notice.

I am of opinion that the writ of error should be dismissed and the supersedeas discharged.