Edwards v. State ex rel. Kimbrough

250 S.W.2d 19, 194 Tenn. 64, 30 Beeler 64, 1952 Tenn. LEXIS 352
CourtTennessee Supreme Court
DecidedFebruary 9, 1952
StatusPublished
Cited by6 cases

This text of 250 S.W.2d 19 (Edwards v. State ex rel. Kimbrough) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. State ex rel. Kimbrough, 250 S.W.2d 19, 194 Tenn. 64, 30 Beeler 64, 1952 Tenn. LEXIS 352 (Tenn. 1952).

Opinions

Mr. Justice Tomlinson

delivered the opinion of the court.

This is a suit instituted upon the relation of more than ten citizens and freeholders of Polk County for the purpose of procuring a judgment removing John Edwards from Ms office of Sheriff of Polk County, Code Section 1879. The removal was sought on the ground that he knowingly and wilfully neglected to perform certain important duties enjoined upon him as such Sheriff. The suit was instituted in accordance with the statute carried in the Code under the title of “Removal of Unfaithful Public Officers”, This statute is commonly known as the [67]*67“ouster” law. It is carried in the official code commencing at Code Section 1877.

The Sheriff’s demand, seasonably made, for a? trial by a jury on the issues of fact made by the pleadings was denied by the Circuit Judge and a trial had upon oral evidence without the intervention of a jury. It seems appropriate at this time to observe that into Section 1889 of the Official Supplement to the Code of 1932 there is expressly written the provision that a defendant official in an ouster case is entitled to a trial by a jury upon any issue of fact. However, this Supplement to the 1932 Code did not become effective until January 1, 1952. The trial in the instant case was had in the summer of 1951.

At the conclusion of the introduction of the testimony which takes up almost eleven hundred pages of the record, the Circuit Judge took the case under advisement for a reasonable while. He then wrote a very able, painstaking and lengthy opinion of sixty pages, wherein his conclusion was that the Sheriff knowingly and wilfully neglected to perform the duty enjoined upon him by the laws of the State in that he knowingly and wilfully failed to exercise his official duty and the power of his office to disperse unlawful assemblies which had prevented the Quarterly County Court of Benton County from meeting on four occasions, commencing with March 2 and ending with April 16. A judgment removing him from office was' accordingly entered. The case is now before this Court on the appeal of the defendant Edwards, the Sheriff.

By his assignments of error Sheriff Edwards insists that (1) the Circuit Judge committed reversible error in denying his application made at the beginning of the trial for a trial by a jury upon the issues of fact, and (2) the evidence preponderates against the findings of the Trial Judge that Edwards knowingly and wilfully failed [68]*68to exercise his official duties in the respects charged and hereinabove mentioned.

As first enacted, the Ouster Law did not provide fox a trial by a jury on issues of fact. By Chapter 94 of the Public Acts of 1933, Section 1889 of the Code was amended so as to grant a defendant official the right to such jury trial. Then Chapter 3 of the Public Acts of 1937,' Third Extra Session, expressly repealed, without more, the 1933 Act. This, of course, took away the right of trial by a jury. Then Chapter 10 of the Public Acts of 1939 expressly repealed, without more, the repealing Act of 1937.

It is the contention of Sheriff Edwards that the express repeal by the 1939 Act of the repealing act of 1937 had the legal effect of reviving the 1933 Act which gave a defendant official in an ouster case the right to a jury trial. Stated in the abstract, his proposition of law is that when a statute which expressly repeals another, without more, is itself afterwards repealed, without more, the original statute is thereby revived without any formal words to that effect.

As will be pointed out hereinafter, the provisions of the Ouster Law are such that the materiality of Mr. Edwards ’ insistence with reference to his right to a trial by a jury depends upon whether there is any conflict in the evidence with respect to the material and determinative issues of fact made by the pleadings. Hence, it is necessary that the evidence in this case be first considered with the view of determining this question:

For some time preceding and during the period of time here involved two political factions existed in Polk County. One was known as the Good Government League; the other, as the regular Democratic Group. The competition [69]*69between them was extremely intense and the feeling very bitter.

The Quarterly Court of Polk County consisted of nine members. Five of them belonged to the Democratic Group. The remaining four were associated with, and supported by, the Good Government League. The Chairman Pro Tern was August Lewis. He was a member of the majority group, the Democrats. Sheriff Edwards belonged to the Good Government League, and had been supported in his candidacy for Sheriff by that faction. He and many of the Good Government League crowd were particularly bitter and resentful, politically speaking, of August Lewis, and of his holding the office of Chairman Pro Tern of the Quarterly Court. It is not inappropriate to say at this point that four days prior to the planned fifth meeting of the Quarterly Court in May of 1951 Lewis was ambushed and assassinated. No attempt was made to hold that scheduled meeting, and it is not involved in this suit.

The 1951 Legislature had enacted several Private Acts with reference to Polk County. These acts divested certain county officials belonging to the Good Government League of many of their powers and duties and vested them in the Quarterly Court. One or more offices held by members of the Good Government League were likewise so affected by one or more of these acts as to vest the office in other persons belonging to the Democratic group.

Following the enactment and effective date of these special acts the Quarterly Court of Polk County was called to meet on March 12,1951. However, as will be more fully hereinafter shown, the five Democratic members of that Court were not allowed to assemble in the CourtHouse. Efforts to meet on March 24 and April 2 were equally as unsuccessful.

[70]*70As to the meeting called for April 16, there came to the Democratic members of the Quarterly Court information, which they considered reliable, to the effect that the plan that day of persons supporting the opposing group was to prevent the attendance of two of the Democratic group from the contemplated meeting of the Court, hut force the presence of the others. The accomplishment of that alleged plan would have been to create a quorum and, at the same time, to have established a majority representing the Good Government League faction in that particular Court meeting. Based upon that information, the entire Democratic group left Polk County that morning before the alleged plan could be put into effect, if there was such a plan.

On all four of the occasions mentioned large crowds had assembled in the Court-House before the scheduled hour of the meeting of the Court and this crowd, or many of them, remained there for several hours on these occasions. The obvious purpose was to prevent the scheduled meetings of the Court.

When Squire Hammonds, of the Democratic group, started to enter the Court-House for the March 12 meeting, one Edd Bates met him and told him there wouldn’t be any Court, and that if he went to the court room it would be i£at your own risk”. On that occasion Ham-monds saw this man Bates present to a man Shearer, who had been appointed Road Commissioner, a paper for Shearer’s signature. The paper was the resignation of Shearer as Road Commissioner. Shearer signed it after being told by Bates that he could not assure him as to what the consequences would be if he refused.

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Cite This Page — Counsel Stack

Bluebook (online)
250 S.W.2d 19, 194 Tenn. 64, 30 Beeler 64, 1952 Tenn. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-state-ex-rel-kimbrough-tenn-1952.