McCully v. State

102 Tenn. 509

• Court: Tennessee Supreme Court
• Decided: August 29, 1899
• Status: Published

Opinions

McAlisteR, J.

The plaintiff in error, McCnlly, was convicted in the Criminal Court of Henderson County of the offense of selling liquor to a minor, ■and from said judgment has appealed in error.

The main assignment arises upon the action of the trial Judge in overruling the defendant’s plea to the jurisdiction of the Court. The plea averred that the Hon. John M. Taylor, who was assuming to preside and hold said Court, was not Judge of the Criminal Court of the Eleventh Judicial Circuit, nor Judge of any Court in the State of Tennessee, for the reason that, on April 20, 1899, the General Assembly of the State of Tennessee adopted a resolution, two-thirds of the members of each branch concurring, which resolution was, on April 21, 1899, approved by the Governor, removing the Hon. John M. Taylor from said office, in accordance with the authority conferred by Section 6, Article VI., State Constitution. The plea then recites the proceedings of the Legislature which resulted in the removal of Judge Taylor.

The cause for removal recited in the resolution, is that there is not sufficient business to require or justify the retention in office of said official, and that it is necessary for the welfare of the State that the judicial circuits and chancery divisions should be redistricted, and that there should be a reduction in the number of Circuit Judges, Chancellors, and Attorneys-general, to the end that there may be a reduction in the judicial expense's of the State and for the promotion of economy in the administration of public justice. No reason personal to the Judge was assigned as cause for removal, but, on the contrary, the resolution contains a testimonial to the ‘ ‘ eminent ability, fidelity, and purity in public and private life of said John M. Taylor.”

The plea to the jurisdiction was, on motion of the Attorney-General, stricken from the files, and thereupon the defendant was placed on trial, convicted by a jury, and fined by the Court the sum of 810. The verdict of the jury is fully supported by the evidence, and the only question presented for our determination upon the record is whether the Court had" jurisdiction of the case.

It should be remarked that, prior to the adoption of the removal' resolution, the General Assembly had passed an Act repealing the Act creating the Criminal Court of the Eleventh Judicial Circuit and abolishing said Court, but the repealing Act was expressly limited not to take effect until the expiration of thirty days from the final adjournment.

At the time the case now under consideration was tried in the lower Court, to wit, on May 7, 1899, the abolishing and repealing Act, approved April 6, 1899, had not taken effect, and hence no question is presented upon this record in respect of the right of the Legislature to abolish the Court. It is further to be observed that when the removal resolution was approved, to wit, on April 21, 1899, the abolishing and repealing Act had not taken effect. That Act, as already stated, did not take effect until thirty days after the final adjournment of the Legislature. Precisely formulated, then, the question for our determination, upon this record, is whether, upon a proper construction of Art. VI., Sec. 6, of the State Constitution, the Legislature is empowered, for economic reasons, to remove a Judge whose office is still in existence. If the Act abolishing the Court had already taken effect, and afterwards the removal resolution had been adopted, a different question would arise. In such case the whole question would turn upon the power of the Legislature to abolish the Court, for if such power existed the Judge would thereby be displaced, and a removal resolution would be useless and superero-gant. It would seem a legislative solecism to remove a Judge from an office which had already been abolished and had no existence. The present case, however, must be adjudged upon the state of the law as it stood at the date of the trial below, and, as we have already seen, the Act abolishing the Court had not then taken effect, and the jurisdiction of the Judge was challenged alone upon the ground of his removal from office.

The question, then, is whether the Legislature is clothed with authority, under the Constitution, to remove a Judge from office for economic reasons purely. The authority is claimed to be derived from Art. VI., Sec. 6., Constitution of 1870, which provides, viz.: “Judges and Attorneys for the State may be removed from office by a concurrent vote of both houses of the General Assembly, each house voting separately, but two-thirds of the members to which each house may be entitled must concur in such vote. The • vote shall be determined by ayes and noes, and the names of the members voting for or against the Judge or attorney for the State, together with the cause or causes of removal, shall be entered on the journal of each house, respectively. The Judge or attorney for the State, against whom the Legislature may be about to proceed, shall receive notice thereof, accompanied with copy of causes alleged for his removal, at least ten days before the day on which either house of the General Assembly shall act thereupon. ’ ’

Article V., Sec. 4, provides for impeachment of Judges for crimes committed in their official capacity. In support of the action of the General Assembly, it is insisted by the Attorney-general (1) that, under this article and section of the Constitution, Judges and Attorneys-general may be summarily removed for any cause that the two houses of the General Assembly may deem sufficient; (2) that the two houses are exclusive and final Judges of the sufficiency of the canse for removal, and the Courts cannot revise or annul their action; (3) that it is a sufficient cause for removal that an office is useless and the salary an unnecessary public burden. These propositions, thus formulated by the Attorney-general, have been reinforced with an argument evincing much ability ■and research. Antagonizing the views of the Attorney-general, it is insisted that the Legislature had no power, under Art. VI., Sec. 6, of the Constitution, to remove a Judge, excepting for causes personal to the Judge, or his administration of the office, and that the removal of a Judge upon economic grounds is void. It is insisted that the removal clause of the Constitution was designed to cover cases of incompetency, mental or physical disability, continued neglect of official duty, misconduct in office, or other causes which would not constitute impeachable crimes, but would, nevertheless, be proper grounds for removal. It is further insisted that if the theory of the State is sound, the constitutional tenure of office is subject to abbreviation or destruction at the will of two-thirds of the members of the Legislature, exercised for any cause they may deem sufficient for removal, whether founded on economy, politics, religion, race, policy, or expediency, thus discrowning absolutely the independence of the judiciary. On the other hand, in support of the contention that the power of removal is unlimited, it is shown from the journal of the Constitutional Convention of 1870 that three amendments, defining and limiting the authority conferred by this section, were successively defeated.

First, Mr. Gibson proposed an amendment to define and limit the power of removal in these words —“for crime, corruption, habitual drunkenness, incompetency, or neglect of duty.”

Second, Mr. Fentress offered, in lieu of Mr. Gibson’s amendment, the following — “for official corruption or for continued neglect of duty or continued incapacity of any kind to perform the duties of his office.”

Third, Mr. Turner proposed the following amendment— “ provided the causes of removal are such as are prescribed by the general law of the land, passed by a Legislature prior to the one taking-action thereon.”

But the convention rejected all of these amendments, and adopted the section substantially as it stood in the Constitution of 1834. It is now asked if this Court will undertake to do what the convention so emphatically refused to do — instruct the Legislature for what causes removal can lawfully be had.

It is insisted that if the convention was willing to leave the matter to unlimited legislative discretion, this Court cannot inquire into the sufficiency of the cause of removal or the regularity of the proceedings. It is insisted the Courts can no more inquire into the existence and sufficiency of the causes or reasons that prompted the Legislature to adopt a removal resolution than they can inquire into the reasons for the passage of statutes, or the levy of taxes or the appropriation of money. It is insisted the power of removal, as therein declared, is absolute and unconditional, and that the language indicates that the whole matter was left to legislative discretion.

We cannot concur in this construction of the removal clause of the Constitution. The fact that several amendments, specifying the particular canses for which the Legislature would be authorized to remove, were successively rejected, does not, in our judgment, demonstrate that the convention thereby intended to invest the Legislature with an unlimited power of removal. As well said by able counsel: “The authors of these amendments may have believed it best to put beyond any question that the cause . of removal should be confined to the official or personal conduct of the Judge, and that this desire was met by the counter opinion that no other construction than this could be placed upon the removal section, and that, therefore, the amendments were needless and superfluous.

“Again, there is another reason showing it was judiciops to reject said amendments. Causes personal to the incumbent or relating to the conduct of his office might assume many phases, and, therefore,, it would be unwise to undertake to define the same. The enumeration of certain causes should have excluded any legislative power to act upon other causes not expressly designated. An examination of the causes of removal might partially defeat the object of the removal clause. For this reason it was judicious to use general terms, so as to include the intended causes of removal in all possible phases.”

Mr. Cooley, in his works on Constitutional Limitations (2d Ed.), p. 65, says: “When the inquiry is directed to ascertaining the mischief designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of the convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of the convention as to require neither discussion nor illustration, and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally Rnd obviously convey. ¥01', as the Constitution does ■ not derive its force from the convention which framed, but from the people •who ratified it, the intent to be arrived at is that .of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument on the belief that that was the sense designed to be conveyed. These proceedings (the journal) are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the Legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations -of their representatives.” We have an illustration of this in the adoption by the convention of 1870 of that clause which provides, viz., -“No corporation shall be created or its powers increased or diminished by special laws,” etc. The journal of the convention shows that an amendment to limit the provisions of this section to private corporations and exclude municipal corporations was rejected. Yet this Court held that, looking to the scope and purpose of the entire section, private corporations were alone contemplated, and the clause did not apply to municipal corporations. State v. Wilson, 12 Lea, 259.

We think any plain man looking at the force of this removal clause, a.nd reading therein that the cause or causes of removal shall be entered on the' journal of each house respectively, and that the Judge against whom the Legislature may be about to proceed shall receive notice thereof, together with a copy of the causes preferred for his removal, at least ten days before the day on which either house of the General Assembly shall act thereon, would say at once that the clause in question contemplated an investigation of some cause touching the personal or official conduct of the Judge. If the power of removal is unlimited, why provide for service upon the Judge of a copy of the causes alleged for removal at least ten days before action, unless it was to give him an opportunity to prepare for trial, and why provide for a trial of an economic question? This would present a curious anomaly in legislative proceedings — a trial of an issue to determine whether the services of the Judge are needed. In our opinion, if economic reasons had been in the minds of the framers of the Constitution, other words than 'a removal for i£ cause” and on notice would have been used. The word cause used in the removal clause means legal cause. It contemplates a charge, a trial, and a judgment of removal upon cause. State v. Hewitt, 44 Am. St. Repts., 793, 794.

In the case of the State v. The City of Duluth, 39 Am. St. Repts., 596, 598, the validity of an official removal was involved. • The city ordinance provided ‘ ‘ that any member may be removed by a vote of two-thirds of all members of the Council, for sufficient cause, on charges and notice.” The Court said, viz.: ‘ ‘ Cause or sufficient cause means legal cause, and not any cause which the Council may think sufficient. The case must be one which specially relates to, and affects the administration of the office, and must be. restricted to something of a substantial nature, distinctly affecting the rights and interests of the public. The cause must be one touching the qualifications of the officer or the performance of his duties, showing that he is not a fit or proper person to hold the office. An attempt to remove an officer for any cause not affecting his competency or fitness, would be an excess of power and equivalent to an arbitrary removal. In the absence of > any statutory specification, the sufficiency of the cause should be determined with reference to the character of the office and qualifications necessary to fill it.” Hawkins v. Kercheval, 10 Lea, 535.

Where the removal is to be made for cause on notice,' and no specific cause is defined, the cause of removal is to be construed as relating to the person of the official and his administration of the office. See Throop Pub., Sec. 367; 1 Dillon (3d Ed.), Sec. 251.

“Removal for cause” is defined in Anderson’s Law Dictionary as follows: “Removal for cause imports that ■ a reason exists, personal to the individual, which the law and sound public opinion recognize as good cause for his no longer occupying the place. Implies some dereliction or general neglect of duty, some incapacity to perform the duties of the post, or some delinquency affecting the in.cumbent’s general character or fitness for office. The power to remove an officer ‘ for cause ’ can be executed only for just causes after he has had an opportunity to defend.” The following authorities are cited to support definition: People v. Nichols, 19 Hun, 448 (1879); People v. Fire Coms., 72 N. Y., 449; Haighty v. Dove, 39 N. J. L., 14; Rex v. Richardson, 1 Burr, 517.

‘ ‘ Where an officer is appointed or elected for a definite term, he cannot be removed but for cause, by which is meant charges, notice, and trial.” 57 Mo. App., 203.

“The statute of New York confers upon commissioners of New York city the right to remove certain officers at pleasure, with this limitation — that such power of removal “cannot be exercised in respect to any regular clerk or head of a bureau until he has been informed of the cause of the proposed removal, and has had an opportunity of making an explanation.” It also provides that a record of the true causes of removal shall be entered of record in the department, and a statement thereof shall be filed. Under this authority, the commissioners undertook to remove a certain officer who came within the provisions above set oat, and the Court of Appeals of New York, through Allen, J., said: “The party against whom the proceeding is taken must be informed of 'the cause of the pro posed removal, and be allowed an opportunity of explanation. This necessarily implies that the cause must' be some dereliction or general neglect of duty; or incapacity to perform the duties, or some delinquency affecting his general character -and his fitness for the office. The cause assigned should be personal to himself and implying an unfitness for the place.” People v. Fire Commissioners, 72 N. Y., 448, 449.

Another Act of the Legislature confers the following power: “The heads of all departments, and all other persons whose appointment is in this section provided for, may be removed by the Mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the Governor, expressed in writing.”

The Court, in reviewing a removal which had been made under above quoted power, said: “Before an officer can be removed thereunder, he must have definite and specific copy of charges, reasonable time to answer, the right to hear and examine the evidence against him, to offer testimony himself, and to have aid and advice of counsel during the conduct of the examination. The cause must be found in some act of commission or omission by the officer in regard to his duty or affecting his general char.acter, which the law and a sound public opinion pronounce to be sufficient to justify a forfeiture by the officer having the power of removal. People v. Nichols, 19 Hun (N. Y.), 441 et seq. This case also explicitly recognizes the power of the judiciary to review the action of the Governor, as well as that of the Mayor in such matters. It also discusses at length the method of procedure which shall be followed in removing officers where a Constitution or act of the Legislature confers such power without prescribing the procedure, giving to the party whose rights are to be affected all the privileges he would have under the common law when his rights are sought to be interfered with.” Other authorities on the point under discussion are; Haight v. Love, 39 N. J. L., 14; 32 Mich., 255; Edison v. Hayden, 20 Wis., 932; State v. McCarry, 21 Wis., 498; State v. Waterton, 9 Wis., 271.

In the last case above cited, the following language is used: “What is ‘due cause’ for the removal of an officer is a question of law to be determined by the judicial department, and in the absence of statutory provision as to what shall constitute such cause, should be determined with reference to the nature and character of the office and qualifications necessary to fill it.”

Removal for personal causes seems also 'to have been the construction of this clause by an eminent member of the convention, who was afterward Attorney-general of the State, and who argued the case of Coleman, ex rel., v. Campbell, decided by this Court in 1875, reported in 3d Shannon’s Tennessee Cases. In his brief, still on file in that case, he said, viz.: “Here we have the Constitution with express provisions for the independence of the judiciary. What are those provisions? (1) A fixed salary; (2) a permanent Supreme Court, not subject to interference by legislative action, independence in tho highest degree in the Court of last resort; (3) exemption from removal from office for personal reasons, except by a two-thirds vote of both houses.” He further says: ‘‘ The Constitution itself provides for the removal of Judges on personal grounds, but it throws restrictions around these by requiring a two-thirds vote. It also, in one view, provides for the destruction of the Courts (inferior Courts), but as this involves not personal consideration merely but general matters of public policy, as it involves the interests of the people, their rights to their Courts or their support of the burden of them, it no longer throws this protection, which a man unsupported requires, but trusts him to the common cause he makes with his people.”

While this section of the Constitution was not necessarily involved, and hence was not construed by the majority of the Court in Coleman v. Campbell, 3 Shannon, 355, nor in Halsey v. Gaines, 2 Lea, yet Judge Freeman, in his dissenting opinions in those cases, expressed bis views of the meaning of this section. In the former case he said, viz.: “The other mode is found in Art. VI., Sec. 6, which provides for .removal' by a concurrent vote of both houses, each house voting separately; two-thirds of the members to which each house may be entitled must concur in this vote. This is not based on crime in his official capacity (as provided in cases of impeachment), but the right may be exercised for ' other causes, but not, we take it, without causes or at arbitrary discretion of the body, for it is provided the cause or causes of removal shall be entered on the journal of each house, respectively.” Again, he says: “In any case for removal the mode by which it shall be done is definitely pointed out in the Constitution, with its proper safeguards and restrictions, involving a trial or hearing, and the principle of responsibility on the Legislature for the act, as a check upon improper action.” Similar views are expressed by Judge Freeman in his dissent in Halsey v. Gaines, 2 Lea.

The General Assembly, in the removal of Judge Taylor, proceeded upon the idea set forth in the report of the Redistricting Committee, that the proceeding was not, in its opinion, a proper case to be submitted on proof, and that the matter was not susceptible of proof, and was a question which addressed itself to the judgment of the Legislature, and the Judge had no constitutional right to be heard.

We entirely agree that if the Legislature had the right to remove the Judge upon economic grounds, then an issue and trial to determine whether the State needed the services of the Judge would have been absurd. Questions of policy and economy are matters addressed exclusively to the. lawmaking-power, and it would seem ridiculous to argue that the Judge is guaranteed a constitutional right to be heard on such a subject. But it is very plain that this section of the Constitution does guarantee him a right to be heard on the particular cause alleged for removal, and an opportunity to defend himself against the attack, by requiring at least ten days’ notice of the intended action, with a copy of the cause assigned for removal. It is very evident that economic reasons could not have been within the contemplation of the Legislature, and the cause of removal must relate to the personal conduct of the Judge or his administration of the office. Again, if the power of removal conferred by this section is arbitrary and unlimited, a Judge might be removed on account of his religion, his politics, his race, or because he had declared unconstitutional a particular enactment of the Legislature. Such a construction would be monstrous, and wholly abhorrent to fundamental ideas of justice and judicial independence. The design of the framers of the Constitution was to create three departments, executive, legislative, and judicial, which should be coordinate and wholly independent in the exercise of their appropriate functions. ‘£ The Legislature, though possessing a larger share of power, no more represents the sovereignty of the people than either of the other departments. It derives its ’ authority from the same high source.” Bailey v. Philadelphia R. Co., 4 Harr, 402; Whittington v. Polk, 1 H. & J., 244. Said Thomas T. Marshall, viz.: “We have incorporated certain permanent and eternal principles in written constitutions, and erected an independent judiciary as the depository and interpreter, the guardian and the priest of these . articles of freedom. ” It has been said that of all the contrivances of human wisdom this invention of an independent judiciary affords the surest guarantee and the amplest safeguard to personal liberty and the rights of individuals.

If the Legislature has such power as is contended for in the construction of this clause of the Constitution, the judiciary would no longer be ah independent and co-ordinate branch of the government, but a mere servile dependency. But it is said, conceding the Legislature had no power to remove for the cause assigned, its action is nevertheless final and not subject to review by the judiciary. If this is so, the distribution of the powers of government and vesting their exercise in separate departments, would be an idle ceremony. It is very true that no department can control or dictate to another department when acting within its appropriate sphere. People v. Bissell, 68 Am. Dec., 591; Wright v. Wright, 56 Am. Dec., 723.

Each department has exclusive cognizance of the matters within its respective jurisdiction, and when acting within the authority of each, its action must be final and supreme. 6 Am. & Eng. Ene. L., 1008, note.

These principles are axiomatic, and need no citation of authority to support them, but the question remains, Who is to decide when a particular department is acting within the sphere of its authority ? Mr. Webster, in his great speech on the independence of the judicary, said, viz.: “The Constitution being the supreme law, it follows, of course, that any act of the Legislature contrary to that law must be void. But who shall decide this question? - Shall the Legislature itself decide it ? If so, then the Constitution ceases to be a legal, and becomes only a moral, restraint upon the Legislature. If they, and they only, are to judge whether their acts be conformable to the Constitution, then the Constitution is admonitory and advisory only, and not legally binding, because, if the construction of it rests wholly with them, then discretion in particular cases may be in favor of very dangerous and erroneous constructions. Hence the Courts of Law necessarily, when the case 'arises, must decide on the validity of particular acts.”

We are constrained, therefore, to hold that the Legislature, in removing Judge Taylor from office for the reason assigned, transcended its constitutional authority, and such action is therefore void.

Chief Justice Snodgrass, Judges Caldwell and Beard concur, Judge Wilkes dissents.

It is insisted, however, that the General Assembly, by an Act passed at the same session — -to wit, April 6, 1899 — abolished the Criminal Court of the Eleventh Judicial Circuit, and repealed the Act of 1895, which created the same. As already observed, this Act did not take effect until . thirty days after the adjournment of the Legislature, and it had not taken effect at the date of the proceedings in this case, nor at the date of the adoption of the removal resolution herein discussed. The question, then, of the abolition of the Court does not arise on this record. But since counsel have presented the question and earnestly ask the Court’s opinion touching it, thereby to avoid further litigation, we proceed to express our views. The Act creating the Criminal Court of the Eleventh Judicial Circuit was passed in 1895. That Act was repealed by an Act passed April 6, 1899, and the Criminal Court of the Eleventh Judicial Circuit was abolished. The Act provided that it should take effect thirty days from and after the final adjournment of the General Assembly. At the same session another bill was passed providing that the jurisdiction of said Criminal Circuit should be exercised by the Circuit Courts of said counties. Said Act also detached Benton County from the Eleventh Judicial Civil Circuit and attached it to the Twelfth Circuit. It was further provided that the Judge of the Eleventh Civil Judicial Circuit should have civil jurisdiction in Madison County, and then enacted, viz.: “And the said county of Madison is hereby attached to and also made a part of the Eighteenth Judicial Circuit of the State, and the Judge of said Circuit shall have exclusive general common law and statutory jurisdiction in all cases of a criminal character arising in said county of Madison, but shall have no civil jurisdiction whatever.” Said bill further provided, viz.: 1‘ That no case, proceeding or process ,- shall. abate by reason of any of the changes here-inbefore made,” etc. This Act also provided that it should take effect thirty days after the final adjournment of the Legislature.

First, it is insisted by learned counsel representing Judge Taylor that the Act of 1899, repealing the Act of 1895, which created the Eleventh Judicial Criminal Circuit and abolished the Court, is unconstitutional and void.

We are constrained to hold, however, that this question is not primee impressionis in this State, but has, on two occasions, been solemnly and deliberately determined by this Court contrariwise to the present contention. These adjudications have stood for a quarter of a century, and during that period the Legislature has repeatedly exercised the power to abolish Courts of its own creation and the power has been unchallenged. The rule of stare decisis is peculiarly applicable in the construction of written constitutions. Says Mr. Cooley, viz.: ‘ ‘A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A Constitution is not to be made to mean one thing at one time and another at some subsequent time, when the circumstances may have so changed. as, perhaps, to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion.” Constitutional Limitations (2d Ed.), star page, 52.

In the case of the State, ex rel. Coleman, v. Campbell, decided by this Court at Jackson, in 1815, reported in 3d Shannon’s Tennessee Cases, 355, the question presented was in respect of the constitutionality of the Act of March 15, 1875, entitled “An Act to abolish the Second Circuit Court and the Second Chancery Court of Shelby County.” The Constitution of 1870, Art. VI., Sec. 1, provides, viz.: “The judicial power of this State shall be vested in one Supreme Court, and in such Circuit, Chancery, and other inferior Courts as the Legislature 'may from time to time ordain and establish;” provides c ‘ that Judges of the Circuit and Chancery Courts, and other inferior Courts, shall be elected by the qualified voters of the district to which they are to be assigned. . . . His term of service shall be eight years.” Section 7 provides, viz.: '“The Judges of the Supreme and inferior Courts shall, at stated terms, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. ’ ’

Construing these sections of the Constitution, this Court held: (1) That the Legislature has the constitutional power to abolish particular Circuit and Chancery Courts, and to require the papers and records therein to be transferred to other Courts, and the pending causes to be heard and determined in the Courts to which they are transferred. The power to ordain and establish from time to time Circuit and Chancery Courts includes the power to abolish existing Courts, and to increase and diminish the number. (2) The Judge’s right to his full term and his full salary is not dependent alone upon his good conduct, but also upon the contingency that the Legislature may for the public good, in ordaining and establishing the Courts from time to time, consider his office unnecessary and abolish it. The exercise of this power by the Legislature is neither such as interferes with the independence of the Judge or with his tenure of office in such manner as can be complained of. When the Court or Courts over which a Judge presides is abolished, the office of the Judge is extinguished and his salary ceases. (3) It is provided there shall be but one Supreme Court; the number of its Judges is fixed and the places of its sessions are designated. These provisions show that it is the direct creature of the Constitution and subject to no invasion by the Legislature.

Judge Nicholson, among other things, said, viz.: ‘ ‘ But it is not necessary that we should rely upon the authorities, conclusive as they are, to sustain the construction of the Constitution, so repeatedly acted upon by the Legislature, and so long acquiesced in by the people and the' Courts. Upon a fair view of the subject intended to be accomplished, and the circumstances under which the language was used in the Constitution, we are of opinion it. will properly bear the construction placed upon it by the Legislature. The object was to provide a system of inferior Courts, which would secure to all the people of the State the benefits of a sure and economical administration of justice through all time. The State was composed of many citizens, and its population and material interests subject to great changes. These fluctuations would necessarily require changes, from time to time, in, any system of Courts that might be adopted. Hence it was not deemed proper by the Convention of 1870, to fix, permanently, by Constitutional recognition, the systems of inferior Courts then in operation, although they embrace the entire State. For the purpose of providing for future contingencies and exigencies, they were content to leave the ordaining and establishing of inferior Courts from time to time, to the discretion of the Legislature, with the single restriction as to continuance of the Circuit and Chancery Courts. It is legitimate business of the Legislature to determine bow many Courts are necessary, and bow- the various circuits and districts should be arranged and formed. It was proper for the representatives of the people, session after session, to have the power to provide such changes in the circuits and districts, as should be shown by éxperience and observation to be necessary for the public good. This was the power conceded to the Legislature by the Convention when it was provided that they should ordain and establish such Circuit, Chancery, and other inferior Courts, as they should deem necessary from time to time. The ■ ordaining and establishing of such Courts was to be the business of the Legislature through all time. It was impossible that the object to be accomplished could be effectuated by simply adding to the number of circuits or districts. Changes ■ would or might become necessary, which involved the necessity of abolishing existing circuits or districts in ordaining and establishing others, or in reducing the number, if experience should prove that the public good required a reduction. The power to abolish for the purpose of effecting these •objects was, therefore, necessarily implied. It was not intended that the power to abolish districts should be exercised with a view of depriving any portion- -of the people of Courts, but as a means of so ordaining and establishing the Courts as would better promote the public good. It is proper to add that any attempt of the Legislature to exercise this restricted power of abolishing existing Courts, for the purpose of depriving- the people of the requisite number and character of Courts, would be an abuse of power which we have no right to anticipate, and which was not anticipated by the Constitution. Against such abuse of Legislative power the ballot box is the egitimate remedy.”

It has no doubt been upon this view • of the meaning of the power to ‘1 ordain and establish ’ ’ Courts, that the various Acts of the Legislature have been passed, as well as the Act now under: consideration, and we are satisfied that the construction so acted upon is correct.

We have not been able to discover in the Act in question the danger to the independence of the judicial .department of the government which has been dwelt upon in argument with such earnest eloquence, nor do- we see in it any evidence that the Legislature resorted to this as an indirect mode of removing obnoxious Judges. It appears to us to be the exercise of a legitimate power by the Legislature, under the conviction that two of the Courts in Memphis were unnecessary for the dispatch of the public business, and that, therefore, for the promotion of the public good they were abolished as useless, and their work assigned to two other existing Courts. We have no reason to suppose that the two Judges whose offices depended upon the continuance of the former law, were in any- way obnoxious to the Legislature or the people, but were regarded as entirely worthy of their positions. The Act cannot, therefore, be regarded as an abuse of the power of removal for reasons personal to the judges, -nor do we see how Abe -danger of such an abuse of power hereafter could be in any way guarded against or prevented by that construction of the Constitution which would render the Act of the Legislature null and void.

We have not deemed it necessary to discuss the bearing upon. the case of those clauses of the Constitution which provide for the salaries and the terms of service of the Judges, for the reason that we consider it too clear for argument, that if the law abolishing the Courts is valid, the offices and their incumbents, necessarily cease, and, of course, along with them, their salaries.

In our view of the Constitution, the Judge’s right to his full term and his full salary is not dependent alone upon his good conduct, but also upon the contingency that the Legislature may, for the public good, in ordaining and establishing the Courts from time to time, consider his office unnecessary and abolish it. The exercise of this power by the Legislature is neither such as interferes with the independence of the Judge or with his tenure of office, as can be properly complained of. The power may possibly be exercised without good cause, but in such case the Courts can furnish no remedy.

The opinion in the ’ case last cited was delivered by Chief Justice Nicholson, who was a member of the Constitutional Convention of 1870, and an active participant in its deliberations. Judge Freeman delivered an able dissenting opinion. These two opinions demonstrate that the questions now made against the validity of this legislation were presented and exhaustively considered by the Court. Rut this ts Trot all. Tn T8T9 this question was again elaborately considered by this Court in the case of Halsey v. Gaines, 2 Lea, 316, and the ruling in the Coleman case reaffirmed. Judge McFarland delivered the opinion of the Court in the Halsey case. In the latter case it appeared that Judge Halsey, whose Court had been abolished, had applied to the Comptroller for a warrant for his salary, insisting upon his right to have the same paid until the end of his term, notwithstanding his Court had been abolished. The warrant was refused, and thereupon proceedings were commenced by mandamus to enforce its payment. “Much of the argument,” said Judge McFarland, ‘ ‘ which has been pressed upon us in support of the claim, assumes that the former rulings of this Court as to the validity of the Act abolishing the Court is erroneous. . . . The Act was solemnly and in terms adjudged constitutional. It is true the relator was not a party to those proceedings, nor was he a necessary party. The adjudication is nevertheless• conclusive. ... In this view it would seem unnecessary to re-examine the grounds of our former decision, but entertaining, as we do, no doubt of its correctness, we produce briefly the substance of the reasoning of Chief Justice Nicholson, to which we can add but little.” Among other things Judge McFarland said, viz.: “But it is argued that although, by the foregoing construction the Legislature may have power to abolish Courts when they become unnecessary — that the abolition of the- Court can only take effect at the expiration of the Judge’s term, otherwise we defeat that clause of the Constitution which says that the Judge’s term shall be eight years. If the framers of the Constitution intended to leave it to the Legislature to establish and abolish Courts as the public necessities demanded, this was not qualified or limited by the clause as to the Judge’s term of office. To so hold would be to' allow the clause as-to the length of the Judge’s term to overthrow the other clause, whereas we construe the provision that the Judge’s term shall be eight years to be upon the assumption that the Court continues to exist, otherwise we should have to hold that the Court must continue, although declared unnecessary and abolished by the Legislature, simply to secure to the Judge his full term and salary.”

Again, said Judge McFarland, “It is argued that the Act abolishing the Court did not abolish the judgeship — that the relator might still be judge although his Court was abolished. Our Constitution does not recognize a judgeship except as the Judge is the incumbent of a Court or Courts which he is commissioned to hold. We have no supernumeraries, etc. If the law abolishing the Courts is valid, the offices and their incumbents necessarily cease, and, of course, along with them their salaries. To dispense with an unnecessary Court is not to change the term of judgeship, nor is it to affect the guarantees of the Constitution as to his salary, nor does it remove the Judge from office. The office no longer exists, and, of course, a removal from an office that has no existence is not a conceivable proposition.” Judge Freeman again dissented from the views of the majority, and filed an opinion in which his ojections to the constitutionality of the Act are set forth with great vigor and earnestness.

It is obvious that in order to meet the exigencies of the present case we will be constrained to overrule two opinions of this Court, delivered by two of its ablest jurists, in which the very questions now presented were solemnly and deliberately adjudicated.

Lord Cairnes wisely said: £iI think that with regard to statutes it is desirable not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, when once settled, be maintained without any danger of vascillation or uncertainty.” Commissioners v. Harrison, L. R., 7 H. L., 9.

“Where a question has been well considered,” says Judge Harris, “and deliberately determined, whatever may the views of the Court before which the question is again brought, had it been res nova, it is not at liberty to disturb or unsettle such decision, unless impelled by the most cogent reasons.” Baker v. Lorillard, 4 N. Y., 261.

If the law was manifestly misunderstood or misapplied in the case decided, its primacy as a precedent may be overthrown. Those who antagonize the construction announced in the two cases decided by this Court cannot claim more than that the constitutional provisions involved are of doubtful interpretation. That doubt has been resolved against their contention in two decisions of this Court, and upon every principle, looking to certainty and stability in the administration of the law, those rulings should now be followed. They have been cited and followed in other jurisdictions, while the Pennsylvania and Indiana cases, maintaining the adverse view, have been discarded. Aikman v. Edwards, 30 L. R. A., decided by the Kansas Supreme Court, in 1895; Van Buren Co. Supervisors v. Mattox, 30 Ark., 566; Grazier v. Lyons, 72 Iowa, 401.

In Aikman v. Edwards the Court said, viz.: u While the independence and integrity of Courts in the exercise of all the powers confided in them by the Constitution should be firmly maintained, jealousy of encroachments on judicial power must not blind us to the just power of the Legislature in determining within constitutional limits the number of Courts required by the public exigencies, and the kind and extent of jurisdiction and functions to be discharged by each. We think,” said that Court, “the Legislature has the power to abolish as well as create, to diminish as well as to increase, the number of judicial districts.” It should be observed that the constitutional provisions construed in that case were entirely similar to those involved herein.

The provisions of the Federal Constitution on this subject are almost identical with the Constitution of this State. The late Justice Miller, in his work on the Constitution of the United States, wrote, viz.: £ £ The Supreme Court, once in existence, cannot be abolished, because its foundation is not in an Act of the legislative department of the government, but in the Constitution of the United States. It cannot be abolished, nor its Judges legislated out of existence, although it has been forcibly urged, and probably with truth, that all the other Courts can, by legislative Act, be abolished and their powers conferred on other Courts or subdivided in different modes.” This is the opinion of one of the profoundest jurists that ever sat upon the Supreme Bench of the United States. In this connection it may be remarked that, in 1802, Congress repealed an Act under which sixteen Federal Judges had been appointed and commissioned during good behavior. It is true Story and Tucker, in their commentaries, express the opinion that the repealing Act was unconstitutional, and that a majority of all the ablest lawyers of that day were of the same opinion. But the best answer to this- opinion of Mr. Story is that the authority of Congress to pass the repealing statute was not challenged in the Courts, and the Judges themselves acquiesced in their displacement. It is strange that an Act of Congress so palpably unconstitutional was not assailed if that was the opinion of the majority of all the ablest lawyers of that day.

It has been argued that the Coleman and Halsey cases were overruled by the later case of State, ex rel., v. Leonard, 86 Tennessee. The cases were wholly dissimilar. The question in the Leonard case, as stated by the Court, was whether the' Legislature has the power to terminate the office of a Judge elected under a constitutional law and for a constitutional term of eight years, within that term, leaving the Court with its jurisdiction in existence and unimpaired, by simply devolving the duties of the office upon another official, namely, the Chairman of the County Court.” In Halsey v. Gaines, 2 Lea, Judge McFarland had argued this could not be done. “We concede,’’ said he, ‘‘that legislation which indirectly aims to legislate the Judge out of office before his constitutional term expires, under the guise of changing the circuit, or otherwise, would be unconstitutional and void. ’ ’ Judge Snodgrass, in his opinion in the Leonard case, discusses the Coleman and Halsey cases, and says “it is sufficient to say that the case here presents no such question as that determined there ’ ’ (in those cases).

The cases of Keys v. Mason, 2 Sneed, 6; Cross v. Mercer, 16 Lea, 489, relating to the constitutional tenure of Justices of the Peace; Powers v. Hurst, 2 Hum., 24, relating to the constitutional office of Register; Pope v. Phifer, 3 Heis., holding the quarterly County Court a constitutional Court, do not, in our judgment, bear the remotest kindred, either by affinity or consanguinity, to the cases now under consideration. They are not even, mentioned in the majority or minority opinion in the Coleman-Halsey cases, nor in the Leonard case. The cause of State v. Cummings, 14 Pickle, in which we held the constitutional office of Sheriff inviolable, is not at all analogous to this case. Art. VIL, Sec. 1, Constitution of 1870, provides: “There shall be elected in each county one Sheriff, one Trustee, one Register,” etc. This provision is similar to the other clause providing for one Supreme Court. Iiow different the other clause, empowering the Legislature from time to time to ordain and establish Circuit, Chancery, and other inferior Courts! One is established by the Constitution and the others are established by the Legislature.

Another objection to the constitutionality of this Act remains to be noticed. It is based upon Art. VI., Sec. 4 of the Constitution, which provides that ‘£ the Judges shall be elected by the qualified voters of the district or circuit to which they are to be assigned.” As already seen, the Legislature, in this instance of the abolishing of the Eleventh Criminal Circuit, directed that the Circuit Judge of the respective counties formerly constituting the Eleventh Criminal Circuit should have and exercise criminal jurisdiction in said counties, except that Benton County should be detached from the Eleventh. Civil Circuit and attached to the Twelfth .Civil Circuit, and that Madison County, which was embraced in the Eleventh Civil and Criminal Circuits, should be attached to the Eighteenth Judicial Circuit, so far as jurisdiction in respect of criminal cases arising in said county was concerned, but excluding from the jurisdiction of said Court ail civil causes arising in said county. The objection to the Act is that the Criminal Court of Madison County and the Circuit Court of Benton County are to "be held by Judges who were not elected by the qualified voters of said counties.

The question now sought to be made arises upon the Act which attaches Benton and Madison Counties to circuits whose Judges the qualified voters of said ' counties had no voice in electing. If this question is fairly before us, the two Acts, being component parts of one plan to be considered and construed together, we should say, first, that the constitutional provision in question was designed to determine who should be electors of Judges — “They are to be elected by the qualified voters of the district or circuit to which they may be assigned.”

It does not mean that a Judge may not exercise civil or criminal jurisdiction in a county unless he has been elected by the qualified voters of that county, for that would prevent the interchange of Judges and Chancellors. Morover, the Act of the Legislature authorizing the Governor to make pro tempore appointments of Judges to fill vacancies until the next biennial election would also contravene this provision of the Constitution.

In State, ex rel., v. Glenn, 7 Heis., 472, it was remarked that this clause of the Constitution, providing for election of Juges by the qualified voters of the district or circuit, has not been supposed to take, away the power of the Governor conferred by the Legislature to fill a temporary vacancy. The Constitution, Art. VI., Sec. 17, provides, viz.: “No county office created by the Legislature shall be filled otherwise than by the people.” It was held this provision relates only to the mode of filling a temporary vacancy. State v. Glenn, 7 Heis., 472. So we think the present arrangement is in the nature of filling a temporary vacancy in the Circuit Courts of said counties. Judicial Circuit Judges were elected by the qualified voters of their respective circuits. The fact that Benton and Madison Counties have been attached to these circuits since the Judges were elected cannot affect their election or show they were not elected by the qualified voters of the circuit. It is true they were not elected by the qualified voters of Benton or Madison Counties, but they were themselves elected by the qualified voters of their respective circuits. There has been no election for Judges since the new counties were attached, but when there is an election the qualified voters of said new counties will of course participate.

The Constitution, moreover, does not provide that the election shall be by the qualified voters of the respective counties, but by the qualified voters of the district or circuit. By §5708 Shannon’s Code, “the Judges and Chancellors are Judges and Chancellors for the State at large,” etc. ‘The construction now sought to be placed upon this section of the Constitution would revolutionize and destroy our whole system. The Legislature has, from time to time, changed judicial circuits by adding and detaching counties, and its power to do so has never been challenged. State v. McConnell, 3 Lea, 332; State v. Algood, 87 Tenn., 163. If the Legislature has the power to abolish circuits, which we think is no longer open to question in this State, it must follow that it can reassign its parts. Construing a similar provision of its Constitution, the Supreme Court of Kansas, in Aikman v. Edwards, 30 L. R. A., 153, said, viz.: “The most substantial objection that can be urged against such a transfer as is made by this Act is that the people are placed in a district under a Judge in whose selection they have had no voice, and who might not have been chosen if all the people in the enlarged district had been permitted to vote at the time of his election. The reasons apply against the transfer of one county with just the same force as against the transfer of all the counties included within a district. Acts of the Legislature transferring a county from one district to another have very frequently been passed during the history of the State, and their validity has never been questioned. It has never been contended, so far as we are aware, that the Legislature is without power to change the boundaries of judicial districts by deducting counties from one and adding them to another, nor has it been doubted that the Legislature might do this during the continuance in office of any Judge.”

In our opinion the power to detach counties from one circuit and add them to another is clearly within the constitutional grant of authority conferred upon the Legislature to ordain and establish from time to time Circuit, Chancery, and other inferior Courts, and it is not a valid objection to the exercise of the power that it may result in placing the people of the county so transferred temporarily under the jurisdiction of a Judge in whose election they have had no voice.

Affirmed.

Judges Caldwell and Wilkes concur. Chief Justice Snodgrass and Beard dissent.

JUDGE wiLICES’ OPINION.

Wilees, J.

The questions involved in these cases having been fully stated, I proceed at once to their consideration and decision.

The question underlying both is the extent ■ and authority of the power of the Legislature, in view of the provisions of our Constitution. That instrument, Section 3, Article XL, declares, “The legislative authority of this State shall be vested in a General Assembly.” It nowhere attempts, in general terms, to limit this power and authority, and' it is a well-settled rule of construction that a Legislature, in its sphere of legislative action, has unlimited power, except so far as restrained by the Constitution of the State or the United States. It does not derive its power from the Constitution, but has all power not expressly withheld from it by the Constitution so far as the legitimate sphere of its action extends. While, under our form of government, Congress has only such power as is conferred upon it by the Constitution of the United States, a State Legislature has all and every power not expressly withheld from it by the organic law of the State or Union that properly pertains to a legislative body. Henley v. State, 98 Tenn., 665 and cases cited; 6 Am. & Eng. Enc. L. (2d Ed.), 933.

The ordaining and creating of Courts and their abolition, and the removal of Judges from their offices,' can neither be said to be strictly a legislative function, and hence we may upon these matters look to the constitutional provisions, and they must, so far as they extend, form a guide for legislative action and a cheek upon legislative power.

It is another familiar rule that no Act of the General Assembly can be annulled and set aside by the Courts, unless it contravenes and conflicts with some provision of the Constitution, and whenever the validity of any Act is assailed, the specific provision of the Constitution which it expressly, or by unavoidable implication, violates, must be pointed out. Henley v. State, 98 Tenn., 665.

An Act cannot be annulled because, in the opinion of the Court, it violates the best public policy, or does violence to some natural equity, or interferes with the inherent rights of freemen, nor upon the idea that it is opposed to some spirit of the Constitution .not expressed in its words, nor because it is contrary to the genius of a free people, and hence the wisdom, policy, and desirability of such Acts are matters addressed to the General Assembly, and must rest upon the intelligence, patriotism, and wisdom- of that body and not upon the judgment of this Court. The only question for this Court is, Does the Act or resolution violate any provision of the Constitution, expressly or by necessary implication? Henley v. State, 98 Tenn., 665; 6 Am. & Eng. Enc. L. (2d Ed.), 923.

The provisions of the Constitution which relate to the judicial department are as follows: uThe judicial power of this State shall be vested in one Supreme Court, and in such Circuit, Chancery, and other inferior Courts as the Legislature shall, from time to time, ordain and establish, in the Judges thereof and in the Justices of the Peace.” Constitution, Art. VI., Sec. 1. It is farther provided in Sections i and 7, in substance, that the Judges of the inferior Courts shall be elected by the qualified voters of the district or circuit to which they are to be assigned; that their term of office shall be eight years; that to be eligible they must have been residents of the State for five years and of the circuit or district one year; that they shall at stated times receive a fixed compensation for their services, to be ascertained by law, and which shall not be increased or diminished during the time for which they are elected.

It is urged with much force that the proper construction and unavoidable implication arising out of these provisions, when considered together, as they must be, is, that the people of any particular county, circuit, or district are entitled to have over them Judges of their own selection, and not others in whose election they have had no voice; that these Judges must be residents, when elected, of the particular circuits and districts over which they preside; that such Judges shall have a tenure of office of eight years and a fixed compensation during that time, to be paid at stated intervals, and which shall not be lessened or increased during the term. It is insisted this latter feature is essential to the independence and integrity of the judicial department, and hence any law abolishing a Court, thereby bringing the people who had been subject to its jurisdiction under a different Court and Judge, or any act or resolution which removes a Judge from office, and thus deprives him of his compensation for the term for which he was elected, and deprives the people who had elected him of his services, is contrary to these provisions by necessary and unavoidable implication.

All of these questions do not arise in the case of the defendant, Lee Thornton, since he was, when he was removed and his Court abolished, holding-under an executive appointment, and not under an election, and the business of his Court was simply transferred to another Chancellor, elected . by the same people' and having a local jurisdiction the same in extent and otherwise, but it is not -insisted that there is any difference between an appointed Judge and one elected, and the whole question of the abolition of Courts and removal of Judges, under various acts passed at the last session of the General. Assembly, has been argued before us and treated as involved.

It is evident that, under our judicial system, Judges and Chancellors, no matter where elected, nor by whom, are officers for the State at large, and not merely for their own circuits or divisions. The statute (Shannon, §5707) says: “Each Judge or Chancellor is required to reside in the judicial district or division for which he is elected, and a removal therefrom shall create a vacancy in the office.”

By §5708 it is provided: “The Judges and Chancellors are, however, Judges and Chancellors for the State at large, and, as such, may, upon interchange and upon other lawful grounds, exercise the duties of office in any other judicial circuit or division of the State.”

Accordingly, under both the Constitution of 1837 and that of 1870, the Legislature has, from time to time, repeatedly transferred counties from one circuit or division to another having a different Judge not elected by the people of the county transferred. It has also consolidated Courts, and abolished them, and transferred causes to other Courts, as it deemed for the public interest. A few instances, by way of illustration, will suffice to show the extent of the power claimed and exercised by the Legislature.

In 1865 the counties of the Fourteenth Judicial Circuit were distributed to the Eleventh, Twelfth, and Fifteenth, and the Fourteenth Judicial Circuit was abolished.

In 1867 (Ch. 25, Sec. 4) the Circuit and Chancery Courts of Overton were consolidated, and the process of the Chancery Court was made returnable on the Circuit Court days.

The Common Law and Chancery Courts of Memphis was separated by the Act of 1866 (Ch. 32) into two Courts, and a new Judge made.

On December 4, 1869, by Ch. 28, Sec. 2, “the present Circuit Court of Shelby County, the Law Court of Memphis, the Municipal Court of Memphis, the Chancery Court of Memphis, and the Criminal Court of Memphis were abolished,” and by Section 3 six new Courts were established. This was just before the Convention of 1870, which met on January 10, 1870.

December 3, 1869, the Seventeenth Circuit was' abolished (Ch. 25, Sec. 1).

County Judge’s office was abolished in Sumner Shelby, Griles, Lincoln, Smith, Weakley, Wilson, and Van Burén Counties, in October and November, 1869; in Anderson, November 1; in Cheatham, November 27.

Session of 1870, office of County Judge of Knox County was abolished. Removal of county seat of Hamilton and merger of Courts provided June, 1870. Office of County Judge of Lauderdale abolished.

On June 24 and June 28, 1870, the circuit and chancery districts were organized by the Legislature, and fifteen circuits were made, where before there were seventeen and twelve chancery districts.

Chancery Court of Madisonville abolished January 26, 1871.

Quorum Court of Carroll and DeKalb abolished.

These citations are taken from a brief upon the subject, prepared by Hon. . J. B. Heiskell, formerly Attorney-general of the State, a member of the Constitutional Convention of 1870, and Chairman of its Judiciary Committee. We have not been accessible to the Acts to verify the citations. Cases in which this power of adding counties to, or detaching them from, existing circuits or divisions was involved, have passed in review before this Court, and the validity of the Acts involved questioned on other grounds, but this power appears to have been concede State v. McConnell, 3 Lea, 332; State v. Algood, 3 Pickle, 163.

In the great majority of cases of this character no question of the power of the Legislature has ever been made. However, in the case of State v. Campbell, decided at Jackson in 1875, the constitutionality of the Act of March 15, 1875, was drawn into question, and was ably and clearly contested. The object of that Act was to abolish the Second Circuit Court and the Second Chancery Court of Shelby County. It required the records and papers of the two Courts to be transferred to the First Circuit and First Chancery Courts of Shelby County, respectively, and provided for the hearing in these Courts of causes pending in the abolished Courts, and repealed the Act of December 4, 1869, under which the Courts of Shelby County were organized and the Second Circuit and Second Chancery Courts established. The suit was an action by the clerk of the surviving Court to compel the clerk of the abolished Court to deliver to him the records and papers of the abolished Court. The opinion was delivered by Chief Justice Nicholson, who had been one of the most prominent members of the Constitutional Convention of 1870, and within five years after the framing of that instrument, which is still' the organic law, and when the proceedings and deliberations of that body were fresh in his mind. He stated the questions involved in the case in this language: “The question ■ is whether the Legislature has the power, under the Constitution, to abolish these two Courts and to transfer the causes therein pending to be heard and determined in' the other two Courts of Shelby County to which they were transferred. If the Legislature had the power to enact the law, it must be either becausé the ordaining and establishing of Courts is a legitimate legislative power, necessarily involving the power to abolish, as well as to ordain and establish, and that the Constitution has placed no restriction upon the exercise of this power inconsistent with the action of the Legislature in the present case, or because the Constitution, either expressly or by necessary implication, has vested in the Legislature the power to ordain and establish Courts, and that this power carries with it the power of abolishing existing Courts. It is maintained by the Attorney-general and counsel for the State that the Act in question is constitutional and valid on both of these grounds, while the counsel for the relators insist that the two Courts abolished by the Act were so guarded and protected by the Constitution that, in the exercise of its power to ordain and establish Courts, these two Courts could not be abolished.

The Court proceeds to discuss the questions involved in a manner at once exhaustive and able, and arrives at a conclusion that the Acts were valid and constitutional. We cannot hope to add anything to the force and reasoning of the opinion in this case. With one immaterial difference, the case presents every question that could arise in the consideration of the present Acts, which attempt to abolish Circuit, Chancery, and special Courts, and it is well worthy the perusal of every lawyer and other person interested in the important question involved. The case' is now for the' first time reported in 3d Tennessee Cases, pages 355 to 368, and we will not mar its force and symmetry of reasoning by attempting to make extracts from it, and it is too lengthy to be copied in full. We can add nothing to it, and we do not feel disposed, for reasons hereafter stated, to take anything from it. An able dissenting opinion was filed by Mr. Justice Freeman, which is also worthy of perusal and closest attention.

In the case of Halsey v. Gaines, 2 Lea, 316, the question came up the second time before this Court. In that case the Judge of the abolished, Court sought to compel the State Comptroller to issue warrants for his salary after his Court was abolished, and again the sole question considered was the constitutionality' and effect of the abolishing Act. The Court was .divided as in the Campbell case, Justice McFarland delivering the opinion of the majority, and after a very painstaking and careful consideration of the whole question, again sustained the constitutionality and validity of the Acts. There was also an exhaustive dissent by the same Judge (Freeman) who dissented in tbe Campbell case. These judicial interpretations, in addition to the fact that they are able and learned and by Judges who are equal to any who have ever adorned the bench of Tennessee, have' the added force of holdings almost contemporaneous with the promulgation of the Constitution itself, and by men some of whom were members of the Convention. Such contemporaneous construction, judicial and legislative, is entitled to great weight. 6 Am. & Eng. Enc. L. (2d Ed.), 931, 932.

It is said the case of The State, ex rel., v. Leonard, 86 Tenn., is not in accord with these rulings. The opinion in that case cites the former opinions, and states that it differs with their reasoning in some respects, but also disclaims any intention to overrule them. The question' involved in that case was not identical with that involved in the former cases nor in this case. The Act of March 14, 1887, then brought into question, undertook to abolish the office of County Judge of Marshall County, and to transfer his powers, duties, and jurisdiction, without diminution or change, to the Chairman of the County Court to be elected by that body, and the Act was held to be invalid and unconstitutional. It was also held in that case that a County Judge elected under a valid law was entitled to hold his office for the constitutional term of eight years, although the statute.. creating the office may have prescribed a shorter term of four years. The case was differentiated from the former cases in the able opinion of the present Chief Justice, Snod-grass, in the following language:

“It is sufficient to say that the case here presents no such question as that determined there. The Act of 1875 construed [in the Halsey case] had abolished the [Memphis] Court. It did not leave the Court with all its powers, jurisdiction, rights, and privileges intact, and devolve them upon another, as in this case.

“Here the Court was left as it existed, except the change made in it's official head. He was' simply removed by operation of the Act, if it could take effect according to its terms, and another put in his place. ’ ’

The Leonard case appplies 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.

These cases we consider to be conclusive upon the right of the Legislature to abolish or change judicial circuits or districts, or special courts, and so far as this feature of the controversy is concerned, the case might be left to rest upon their authority. It was in view and consequence of this holding of the Court that the General Assembly framed its legislation when in its wisdom it saw proper to reorganize the judiciary and dispense with what it deemed unnecessary offices and officers. These holdings and constructions given by the Court to constitutional provisions, which have been made the basis and foundation for legislative action, should not be departed from, even though, if the matter were res integra, this Court or members of it should be disposed to entertain contrary or modified views of the subject. We know, as a part of our history, that this action by the Legislature was not only based upon this holding by the Courts, but was in obedience to a public demand which had been impressed upon the members when elected. But examining the question without regard to these adjudications, we find, as we think, a safe guide to the interpretation of these constitutional provisions, arising out of the proceedings of the Convention which framed the Constitution. It is evident from the provisions of the Constitution that but few limitations were intended to be placed upon the power of the Legislature to create, establish, 'and change inferior Courts. Limiting safeguards were placed around the Supreme Court, to protect it both from legislative and executive control, which were not placed around the inferior Courts. It was provided there should be but one Supreme Court, so that its powers and prerogatives could not be lessened by being divided; the number of Judges was fixed, so that it could neither be increased nor diminished; the places of holding its Courts were fixed, so that they could not be changed. None of these limitations were thrown around the inferior Courts. The number of Courts, the number of Judges, and the places of holding these Courts was left to be determined by the Legislature. 'Why this distinction between the supreme and inferior Courts was made we need not now stop to consider. It was not •done, as we know, without an effort to place restrictions also upon the Supreme Court, and to put it likewise within the control of the Legislature. It appears that a resolution was submitted by Hon. John M. Taylor, a delegate to the Convention of 1870, and one of the officials now concerned in these proceedings, providing that the Supreme Court should consist of a Chief Justice and four associate justices, and that the number of associate justices might be increased or decreased by law, but should never be less than two. Journal of the Convention, page 59. This resolution was referred to the Judiciary Committee, but never became a part of the Constitution, and the Convention refused to put the Supreme Court to this extent under the control of the Legislature.

The Convention did see proper to restrict the Legislature in the enactment of certain other statutes, such as retrospective laws, laws impairing the obligation of contracts, laws increasing or diminishing certain official salaries, but it did not place any restriction upon the enactment of statutes similar to-those under consideration so far as they relate to inferior Courts and Judges. An' effort, however, was made to do this. Hon. Henry R. Gibson, a member of the Convention, offered the following as an independent section: “The Legislature shall, from time to time, by a general law, divide the State into judicial circuits and chancery districts or divisions, so that the number of circuits shall not exceed one for every sixty thousand inhabitants, and the number of chancery districts or divisions shall not exceed one for every seventy-five thousand inhabitants; Provided, That territory and population shall be so equalized as to equalize the labors of the several Judges and the several Chancellors as nearly as possible. And no circuit, district or division shall be created otherwise than by a general law recircuiting or redistricting the entire State.” Journal, 237. This was defeated, and the Convention refused to make it a part of the Constitution. While thus refusing to relax any of the restrictions upon legislative power over the Supreme Court imposed by the Constitution of 1834, as evidenced by the rejection of the Taylor resolution, the Convention refused to . impose any restrictions upon legislative power over the inferior Courts, except simply to preserve a system of Circuit and Chancery Courts, as .evidenced by the rejection of the Gibson resolution.

It is insisted there is a difference between the abolition of a Circuit Court and the removal of the Circuit Judge, as in the case of Judge Taylor, •and the abolition of one of two Courts in the same territory and the removal of one of the Judges, leaving another with the same local jurisdiction, as in the case of Judge Thornton; and the Campbell case and the Halsey case are referred to as belonging to the latter class and standing upon the same footing as the Thornton case. This argument proceeds upon the idea that in the abolition of a Circuit Court and removal of a Circuit Judge the people within that local jurisdiction are necessarily compelled to pass under a Judge in whose election they never had a voice, while in the cases such as Campbell’s, Halsey’s, and Thornton’s there remains a Judge elected by the people and a Court with the same power and jurisdiction, local and otherwise, which pertains to the one abolished, and so the people are not required to pass under a Judge whom they did not aid in electing, but still have a Judge selected by themselves. We think this argument specious, for several reasons. In the first place, if the people of any particular locality have elected two Judges to preside over them, upon the reasoning assumed they are entitled to both, and, in having their controversies determined, to a choice between the two, and neither can be abolished or removed. In the next place all Judges and Chancellors have jurisdiction co-extensive with the limits of the State, and, while they are expected to preside where they were elected, they can preside elsewhere. Again, whenever a new circuit or Court is established, the office is filled by appointment of the Governor until the next election, and not by a vote of the people until that time, and, while this may be in consequence of a special constitutional provision, it is in accord with the whole theory • and system of our judicial department. We may grant that, as a general provision, it is intended the people shall elect their own Judges; still in exigencies, when it becomes necessary, Judges may be appointed until an election can be had, and this is virtually what is done in cases when a Circuit Court is abolished and a Circuit Judge removed, and the citizens of that locality transferred temporarily to other Courts and Judges.

The decisions of other States are conflicting upon the questions here involved. Perhaps a few of the State Constitutions do not contain the removal clause. It is not to be found in the Federal Constitution. There are leading and important cases reported in Pennsylvania, Indiana, Illinois, and Wisconsin that support the contention of the Judges. There are others in Kansas, Iowa, and Arkansas that sustain the views herein expressed.

The case of Aikman v. Edwards, decided in 1895 by the Supreme Court of Kansas, considers the question more elaborately than any other, and may be found in 30 L. R. A., pages 149 to 155. By an examination of the opinion of the Court and the briefs of counsel, it will be seen that all the questions raised in this case were then forcibly presented, elaborately argued and maturely considered in the light of constitutional provisions very similar to our own. It was there urged that Judges were constitutional officers, and had a vested right in their offices; that their terms were fixed by the Constitution, and could not be abridged or destroyed; that it was the ' intention of the Constitution. that they should not be disturbed in their offices for any cause except malfeasance in office; that taking away the territory of the officer in effect took away the office, and that the exercise of power of removal would destroy the independence of the judiciary. On the other hand, it.was insisted for the State that the Constitution did not, directly or indirectly, prohibit such action by the Legislature as the abolition of Courts, and, such being the case, that body had the power to do so, and the passage of the Act was conclusive upon the Courts of the wisdom and necessity of the Act, and the fact that thereby the terms of judicial office were lessened would not render the Act unconstitutional. A large number of authorities from different States were cited and relied on, and considered and commented on by the Court. The provisions of the Constitution of Kansas are set out, and upon the features of abolishing Courts .and removing Judges are very similar to those in the Constitution of Tennessee. The opinion is too long and elaborate to be copied, but it is' worthy of perusal. It antagonizes the cases of Com. v. Gamble, 62 Pa., 343 (1 Am. Repts., 422); State v. Friedly, 135 Ind., 119 (21 L. R. A., 634); People v. Dubois, 23 Ill., 547, and State v. Messman, 14 Wis., 177. The condition of affairs which caused the abolition of the Courts in Kansas was quite similar to that existing in Tennessee. By previous legislation judicial' districts had been created which were found to be unnecessary and the salaries necessary to support them burdensome, and the people demanded the abolition of useless offices, and the Acts were passed abolishing the Courts in recognition of this public demand. It will be noted, however, that the matter was in that case placed before the Court under somewhat different circumstances from those presented in this case, and it is not directly in point. The case did not' involve the removal of an officer from office by the abolition of his office, but presented the question of the right of the relator to become a candidate to fill the office which the Legislature had abolished. The Act itself provided that it should not be construed as to deprive any Judge of bis salary. The contention, as broadly made, was that the Legislature could not abolish the circuit which it had established, and, this being so, the office of Judge still existed, and the relator had a right to become a candidate for it, and the Court very properly said that the relator did not claim any vested right in the office, and that the question of the right of the Legislature to deprive a district Judge of the compensation allowed by law was not involved; and the Court declined to discuss the question whether there could be a Judge without a district or Court over which to preside, and the question was not involved.

The leading and strongest case holding a view contrary to this is that of the State of Indiana v. Friedly, which may be found in 21 L. R. A., 634, in which the question was fully presented, elaborately argued, and maturely considered and decided by the Supreme Court of Indiana in view of the provisions of the Constitution of that State. The real points decided in that case were that a Judge whose term of office is fixed by the Constitution cannot be deprived of his office or of the exercise of its duties before the expiration of his term, by a statute attempting to abolish the judicial district to which he was elected. The removal of a Judge under a constitutional provision was not involved. This case is also well worthy of perusal, and presents the question of the abolition of Courts, and offices in consequence, strongly in favor of defendant’s contention. There are numerous other authorities cited in these cases and o elsewhere, but we need not quote them here. 19 Am. & Eng. Enc. L., 562; 6 Am. & Eng. Enc. L., 2d Ed., 1047.

We are cited by defendant’s counsel to a number of cases in our own reports in support' of their contention, and to them we make a brief reference, with the general statement that none of them are applicable to the present case. With three exceptions they were cases decided prior to the cases of Campbell, Halsey and Leonard, and yet were not cited by the Court in those cases, nor, so far as we can learn, relied on by counsel. We cannot presume they were overlooked.

The first case is that of Norment v. Smith, 5 Yer., 270, in which it was held that the Act of 1827, Ch. 37, authorizing the Governor to appoint a special Judge in case of sickness or bodily infirmity of a Circuit Judge, was unconstitutional and void under the Constitution of 1796. This was remedied by the Constitutions of 1834 and 1870 by express provisions, and the case itself has been seriously questioned, if not overruled, by the case of Venable v. Curd, 2 Head, 586, and was only a majority opinion in the first instance. So far as this case touches the real question at issue in the present one, it is antagonistic to the views of the defendant, as it illustrates the greater power vested in the Legislature over the judiciary by the Constitutions of 1834 and 1870, when compared with that of 1796, and it serves also to show that the disastrous results foreshadowed in the views of Chief Justice Catron as liable to happen, if the power of appointing a special Judge was conceded, have proved to be entirely baseless by our subsequent judicial history.

The case of Brewer v. Davis, 9 Hum., 208, is one affecting the tenure of office of the Clerks of inferior Courts, who under the Constitution are given a term of four years. It was held arguendo, but no doubt correctly, that the term could not be changed by the Legislature so as to eject one incumbent and install another during that time. This is in accord with all the cases, but. is not applicable to the case at bar.

. The case of Keys v. Mason, 3 Sneed, 7, is a case under the Constitution of 1831, which fixed the term of office of Justices of the Peace at six years, and it was held that a Justice elected to fill a vacancy was entitled to hold the full term of six years, not merely for the unexpired term of his predecessor. This provision in regard to filling vacancies was changed by the Constitution of .1870, and furnishes another illustration of the trend of constitutional and legislative action to provide for a shorter term of office under certain conditions, though the term, in the absence of such conditions, remained as before. It is well to note in this connection that neither of our Constitutions made Justices of the Peace impeachable or liable to removal by resolution of the Legislature, as was provided in case of Judges.

Pope v. Phifer, 3 Heis., 682, simply holds that the County Court is one of the judicial institutions of the State recognized by the Constitution, and that its functions cannot be taken away from it and devolved upon another body.

The case of State v. McKee, 8 Lea, 24, is to the effect that while a Judge of the County Court is a constitutional officer so far as pertains to his judicial functions, he is also general agent and accounting officer of the county, and may receive extra compensation for services in that capacity.

The case of Cross & Mercer ex parte, 16 Lea, 486, holds that the Legislature has no power to abridge the term of office of a Justice of the Peace to a period less than that fixed by the Constitution of six years. The case is distinguished from the Campbell and Halsey cases by the same Judge (Freeman), who dissented in those cases, and shown to be not a parallel case, and this is so obviously apparent that we will not discuss it.

The case of State v. Cummings, 15 Lea, 667, holds that the Legislature cannot deprive the Sheriff, who is a constitutional officer, of a substantial part of his powers and functions. The office of sheriff is one sui generis. It is provided for by the Constitution, but the duties of the office are not defined. There can be only one in any county, and no other officer in. the county has the same functions and powers. The samé-is true of the • County Judge as in the Leonard case, and the County Register, as in the case of Powers v. Hurst, 2 Hum., 24. They are all-officers recognized by the Constitution, and there is no other officer upon whom the same functions and powers are devolved, and the Legislature can create-no other. There is no provision for ordaining and establishing a number of these offices. In many respects they stand upon a footing similar to that of Supreme Judges. There can be but one Supreme Court for the State, one County Judge, one Sheriff, and one Trustee and' Register for a county, and the-Legislature has no power to create more, nor can their powers, duties, and functions be taken from them and devolved upon others. Upon this proposition alone the Leonard case is abundantly supported.

There are cases cited from other States, notably Com. v. Gamble (Pa.), 1 Am. Rep., 422; Fant v. Gibbs, 54 Miss., 396; Hoke v. Henderson, 25 Am. Dec., 675 et seq., but this Court, in the Halsey case, refused to follow them.

It is said upon the one hand that the power to create and establish Courts and Judges carries with it the power to abolish and regulate, and, on the other hand, it is said the Constitution does not give the power of removal. If the latter contention be correct, it follows that once a Court always a Court, once a judgeship always a judgeship, and the logical result would be that when a Court or judicial circuit is once established it could never be changed or abolished. No one takes this extreme view, but it is conceded that the Legislature has the power to change and abolish, provided the tenure of the Judge is not interfered with, and the people are not transferred to a district or circuit presided over by a Judge whom they have had no voice in. electing.

It cannot be insisted that there is any express prohibition against abolishing a Court, except at such time as the term of office of its Judge expires, but the strength of defendant’s contention is based upon that provision of the Constitution which gives to Judges a term of office of eight years and a stated salary. And it is argued that this term cannot be abridged, nor the officer removed, nor the Court abolished, so as to affect the right of the Judge to discharge its duties and receive compensation for the copstitutional term. The eight-year term of office is thus made the constitutional limitation upon the power to abolish the Courts. It must be evident that the provision that the term of service shall be eight years is not unconditional and absolute. On the contrary, it is subject to many contingencies and conditions. For instance, the term is not eight years if the incumbent dies or is impeached, or becomes incompetent by removal from the district or State, or if he shall be convicted and sentenced for felony, or shall be removed by the adoption of a new Constitution. If the term of office can be abridged by these means, why may it not be by the abolition of the office or by removal of the incumbent by the General Assembly? The implication is as strong against any abridgment of the term in the one case as in the other. It has never been held in this State that an official holds his office by virtue of any contract which is protected by constitutional provision. Even in jurisdictions where this doctrine most strongly prevails, it is said that offices are only subjects of property so far as they can be so treated in safety to the general interests involved in the discharge of their duties. And as is the creation, so is the continuance of the office a question of sound discretion in the Legislature, of which the Court cannot question the exercise. When the office ceases to be required for the benefit of the people, it may- be abolished. There is no obligation on the Legislature or the people to keep up a useless office or pay an officer who is not needed. He takes the office with the' tacit understanding that the existence of the office depends on the public necessity for it, and that the Legislature is to judge of that. Hoke v. Henderson, 25 Am. Dec., 677, a North Carolina decision by Ruffin, Chief Justice.

The doctrine, tersely stated, is, that the rights of the individual must give way to the rights of the public, and the tenure of office is controlled by the general welfare and the interests of the public, and they must control the term of office instead of being controlled by it, and this is the holding of our cases.

Much that has been said in regard to the abolition of Courts is directly applicable also to the resolutions of removal. The “causes” of removal, as set out in the resolutions and other proceedings relating thereto — and they are . all substantially the same — are that the public business will not justify the retention in office of the Judges involved; that the public welfare requires a redistricting of judicial circuits and chancery divisions; that a reduction in the number of inferior Judges and compensation to be paid them is demanded in the interest of public economy, and that the Courts over which they have presided have been abolished as unnecessary. It will be noted that there is no charge of incompetency or dereliction of duty or want of fidelity in the discharge of his duties ascribed to any Judge or attorney who is removed; but, on the contrary, the resolutions testify to and emphasize the eminent ability, fidelity, purity, and faithfulness of the officials in private and official life.

The constitutional provision under which this removal is effected ■ was in this language, to wit: ‘ ‘ J udges and attorneys for the State may be removed from office by a concurrent vote of both houses of the General Assembly, each house voting separately; but two-thirds of the members to which each house may be entitled must coincide in such vote.

“The vote shall be determined by ayes and noes, and the names of the members voting for or against the Judge or attorney for the State, together with the cause or causes of removal, shall be entered on the Journal of each house, respectively.

“The Judge or attorney for the State against whom the Legislature may be about to proceed, shall receive notice thereof, accompanied with a copy of the causes alleged for his removal, at least ten days before the day on which either house of the General Assembly shall act thereon.” Const., Art. VI, Sec. 6.

It is conceded that the Legislature has the power to remove Judges and attorneys for the State under this provision, but it is insisted that the true interpretation of the word “causes” is that such removal can bé had only for reasons personal to the official, and does not embrace reasons and grounds of public economy and public policy. I insist that no such narrow or limited construction can be given to the term ‘1 causes ’ ’ as used. A provision similar to this one contained in our Constitution is found in that of a majority of the States of the Union. It exists in Alabama, Arkansas, Colorado, Connecticut, Delaware, Georgia, Florida, Illinois, Kansas, Kentucky, Louisiana, Michigan, Maryland, Mississippi, Minnesota, Missouri, New York, New Hampshire, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

In different States the power of removal is vested in different tribunals and to be pursued in different modes — sometimes by the Governor, sometimes by the General Assembly, and in other States by the. Supreme Court. The modes prescribed are substantially the same. Some of the State Constitutions specify, either in general or special terms, .the grounds upon which removals may be made. In Delaware, Kentucky, Nevada, and Louisiana removal may be for any reasonable cause; in Alabama, South Carolina, Michigan, Mississippi, Pennsylvania, and Texas it may be for any willful neglect of duty or any other reasonable cause which shall not be sufficient ground fo.r impeachment; in Georgia and Rhode Island by impeachment or upon conviction of any crime; in Indiana for corruption or for any high crime; in Oregon for malfeasance, misfeasance, or willful neglect of duty; in West Virginia upon conviction of willful neglect of duty or misbehavior in office, or any other crime; in Maryland on impeachment; in Ohio upon complaint; in Illinois, Missouri, New York, Tennessee, Virginia, and Wisconsin for “cause,” without any limitation or definition of that term. The language of our Constitution enumerates no causes of removal, not even by general classification. It gives no hint of the nature of the causes for which removal may be had. The power of removal, as therein declared, is broad, general, and unrestricted. The tribunal to which the power belongs, inherently and by declaration, is one of general powers, unlimited except by Constitution.

The term ‘ ‘ cause or causes ’ ’ signifies nothing as regards the nature of the grounds for removal. The language indicates that the whole matter was left to legislative discretion, and that any cause dictated by the public interests is sufficient. The history of this clause, and its predecessors, is instructive and conclusive of this view.

In England the proceeding was known as removal by address, and consisted of an address of both houses of Parliament to the sovereign for removal of a Judge. When it was sought to provide for removal by address in framing the Constitution of the United States, the proposition was bitterly antagonized, and received in the Convention the vote of only one State, to wit: New Jersey. 3 Story on Const., 484.

No removal clause is found in our Constitution of 1796, probably by reason of antagonisms excited by the then recent debates in the convention that framed the Federal Constitution. The clause is found in the Constitutions of 1834 and 1870 in practically the same language. The first time was but a short while after the fearful struggle in Kentucky over a similar provision. It was antagonized in both conventions, and has passed twice through the fire of discussion. The proceedings of these conventions, in relation to this clause, as preserved in the journals, leave no doubt that it was intended the Legislature might, remove for any cause whatever that might be deemed for the public good.

In the Convention of 1834 the following occurred: Mr. Huntsman offered to amend the clause by adding: “And the Judge shall be served with a copy of charges to be exhibited against them at least twenty days before the General Assembly shall act upon his removal.”

In lieu of which Mr. Humphreys offered the following : “Judges for any reasonable cause, which may not be sufficient for an impeachment, may be removed from office,” etc.

Mr. Huntsman accepted this amendment, which was rejected by a vote of 33 to 23.

The proposition confining the clause to ‘£ infamous and corrupt conduct,” and requiring a trial, was rejected.

These proceedings are significant.

The Convention of 1870 witnessed another and more doubtful struggle over this clause. It was reported, without material change, from the corresponding clause in the Constitution of 1834. When it came up for adoption, Mr. Gibson offered the following amendment, seeking to define and limit the legislative power of removal to the causes named therein: ‘ ‘ Insert between the words ‘ office ’ and ‘by,’ in the first line, the words ‘for crime, corruption, habitual drunkenness, incompetency, or neglect of duty.5 ’ ’

Mr. Fentress offered in lieu the following: “Insert after the word ‘ State, ’ first line, the words ‘ for official corruption, or for continued neglect of duty, or continued incapacity of any kind to perform the duties of his office. ’ ’ ’

A motion to lay both amendments on the table failed.

Mr. Turner offered the following amendment: < ‘ Provided, The causes of removal are such as are prescribed by a general law of the land, passed by a Legislature prior to the one taking action thereon. ” Journal, 225.

Mr. Cobb . then offered, in lieu of the entire clause as adopted, the following: “If any cause of removal assigned amounts to a charge of infamous or corrupt conduct, then a Judge shall be tried by impeachment, or the Attorney-general by impeachment or indictment; or if guilt has been ascertained by previous' indictment for a crime not committed in office, then they may be removed, as aforesaid, without further trial, and, in either case, the Judge or Attorney-general shall be suspended from office from the time of impeachment or indictment filed until the end of the trial.” This was likewise rejected. Journal, -229. The clause resisted a motion to strike out by a vote of 42 to 14.

These proceedings show a determined purpose to limit, and an equally determined purpose not to restrict, the legislative discretion as to • causes of removal. The proposition naming the grounds for removal' as “charges to be exhibited,” was too strong. The weaker term, “causes,” was adopted.' The proposition naming the grounds, as £ £ for any reasonable cause which may not be sufficient for impeachment,” was too restrictive, and was rejected.

Some confusion appears in the journal as to the voting upon the several amendments, but the final result was the rejection of all amendments and the adoption of the clause as reported by the committee, without change. Journal, 227-230.

It is significant that the’ Convention, after a struggle between forces nearly equally divided, refused in any way to define the causes for removal. Three propositions for this purpose were submitted and rejected. The first two covered'a very broad field, and yet did not meet the views of the majority. The third was a proposition that the Legislature should, by law, define the causes. But the majority would not submit to even this limitation of the clause. The minority wanted the legislative power defined and limited, but failed. The majority wanted it left without limitation, and succeeded.

Art. Y. of the Constitution deals with impeachment. Art. VI., in which is found the clause under consideration, deals with the judicial department. Both articles were reported in the Convention of 1870 by the same committee, to wit: the Committee on the Judicial Department, and at the same time. Among the distinguished lawyers on the committee were A. O. P. Nicholson, John Baxter, W. B. Staley, and J. B. Heiskell, the latter its chairman. Journal, 42.

In Art.’ Y. it was provided that all Judges and Attorneys for the State should be “ liable to impeachment - whenever they may, in the opinion of the House of Representatives, commit any crime in their official capacity which may require disqualification. ’ ’ Art. V., Sec. 4. A trial and mode of procedure are provided for in this article. The House prefers the articles of impeachment and prosecutes them by its members. The Senate, presided over by the Chief Justice, is the tribunal for trial. The trial is had after the adjournment of the Legislature sine die. Concurrence. of two-thirds of the Senators, sworn to try the officer' impeached, was required for conviction. The judgment, upon conviction, was removal from office and disqualification thereafter to hold office. In view of these proceedings and the provisions of ■ the Constitution relating to impeachments, what scope and operation did the Convention intend the removal clause to have? It is conceded that it was intended to apply when the cause of removal was personal to the Judge, and it is insisted that it goes no further. In other words, a Judge who has become physically or mentally unable to discharge the duties of his office may be removed, but one who is able to work cannot be, even though there is nothing for him to do. T cannot consent to such construction, and, I ■ ask, what warrant is there in the language of the Constitution for such, construction as leads to the result that a Judge who, by misfortune or overwork, has become unable to serve can be removed for these reasons, and one who has become useless for want of work to do cannot be ? The rejection of the1 amendments offered by Mr. Gibson and Mr. Fentress expressly negative the idea that the causes of removal .should be limited to grounds personal to the official. These debates and proceedings in the Convention to which we may look (2d Ed., Am. & Eng. Enc. L., Vol. 6, 930), discloses the fact that, while a • persistent effort was made to define and limit the caüses- of removal, the Convention steadfastly refused to ■ do so,but left it to the discretion, wisdom,- and patriotism' of each General Assembly, not' allowing it to prescribe in advance what should constitute cause.' But the official to be removed was hedged around by extraordinary safeguards and protection. ' It requires more unanimity on the part of the Legislature to remove than it does to impeach. Both houses in removal cases must vote and vote separately.. In impeachment cases the Senate alone votes. In removal cases two-thirds of all the members to which each house is entitled must vote for the removal. In impeachment it requires only two-thirds of the Senators sworn to sit on the trial. In removal proceedings the individual responsibility of each member is fixed and perpetuated by entering the ayes and noes on the journal. It would thus appear that no greater safeguard could be thrown around the officer concerned. It is said, with - much more force and vigor than logic, that the exercise of the power of removal is violative of the Constitution, subversive of the fundamental principles of our government, and destructive of the independence of the judiciary, and an earnest protest, much in this language, was presented to the General Assembly and spread upon its minutes when the proceedings were pending. But it is plain that if the removal resolutions are authorized by the letter of the Constitution, they cannot' violate that instrument. The question as to whether they are subversive of the fundamental principles of our government, and destructive of the independence of the judiciary, are questions proper to be addressed- to the Convention that framed the Constitution and to the Legislature that passed the resolution, but they are not questions for this- Court when the provision is plain and unambiguous. Arguments which might have been weighty and conclusive before those bodies are out of place in this Court. The question for this Court is, Is there such a provision, and what does it mean? When that is answered it must control this Court, no matter what views it may entertain of the consequences. If the power of removal exists, this Court cannot ignore it, nor refuse to recognize it, even if it be deemed hurtful .or dangerous. It is difficult, in debating this question, to keep out of view considerations of public policy and welfare, and confine ourselves strictly to the point proper for us to consider, and that is the existence and scope of the power, without regard to the- results of its exercise. As individuals the members of this Court may entertain their own convictions of the wisdom of such power, but as a Court we must lay aside such convictions and simply inquire, Does the power exist and what is its scope?

I am not able to see that the Legislature intended to limit the removal resolutions to causes personal to the official. To so hold one must read into the Constitution a provision that not only does not appear in it, but one that, after the most persistent and determined struggle, the Convention refused to incorporate in it.

In the case • of The State v. Campbell, which we have already commented upon, the • learned Judge who dissented in that as well as the Halsey case, expressed the opinion that, under the clause of the Constitution we are now considering, the Legislature might remove any judicial officer for any cause or upon any ground which in its wisdom was sufficient and proper, and the power and discretion was unlimited. He stated that it was without question the object of the Legislature in that case to rid the State of a useless officer in the interest of economy; that there were no reasons personal to the Judge for his removal, and hence the Legislature should have proceeded under this removal clause of the Constitution, instead of by the circuitous way of having the Court abolished, and said: “Upon this aspect of the case, the Constitution has left nothing to inference or deduction. The language of the clause includes all possible causes of removal known to the Constitution,' and all conceivable causes for which a Judge or Chancellor may be removed from his office. It appears to. me an anomaly to hold that the Legislature, for economic reasons, may remove a Judge by abolishing his Court, but cannot, upon the same grounds, remove him by resolution.”

• It is said in argument that since the clause in the Constitution provides notice to the officer, and that he be informed of the grounds of removal, that such removal can be had only for reasons personal to the Judge, after a formal trial and an opportunity to be heard, and’ an actual hearing by the official to be affected, and it is said that- the Constitution did not contemplate such a farce as notice to an officer of proceedings, without giving him the fullest Opportunity to . defend against it on every available ground. Upon this feature of the case, it will be noted that the resolutions of removal recite that they were passed after hearing and due consideration. The Constitution does not prescribe in what manner such hearing may be had,' or how formal the trial shall be. It will also be noted that the resolutions recite that the office of the official has become useless and been abolished. This is an official declaration by the Legislature of the existence of such cause, and must be conclusive. If we look to the journals of the General Assembly, we find that an opportunity was given to each official to be heard before the removal body upon the resolutions, both by himself and his counsel; that they appeared in person, or by attorney, ' and defended; that no further time was asked. It is said, however, that the officials were not given the privilege of examining-witnesses to show that the causes of removal did not exist. It appears, however, that the facts which caused the removal were not of such nature as required examination of witnesses or production of records. The causes of removal were of a character known to all as matters of public concern, and were peculiarly within the knowledge of the legislators themselves, and all information they did not have they have obtained by means of a committee of investigation. It is admitted by the' majority that if the removal could be had for economical reasons, then no evidence of trial was necessary. We may concede, therefore, that, as against many causes of removal personal to the officer, the official might defend by showing facts, but they are cases where the facts ‘are in the keeping of the official and not of the Legislature. As, for example, if physical infirmity or mental weakness or absence from his district, or other caíase of this character were the ground or cause of removal, being a matter personal to the Judge, the official may furnish evidence not accessible to legislators generally, and no doubt such evidence would be allowed to be produced; but when the facts are matters of public knowledge, about which the members could find no witnesses better qualified than they are themselves to speak, and ■which are not personal to the officer, it would be folly to take a mass of evidence that could at least be of no avail. But, so far as this case goes, the fullest and fairest investigation was had, and an opportunity was afforded the official to be heard, and in such case as this, the action of the Legislature must be accepted as conclusive, and cannot be inquired into. It is said that there is a discrepancy between the causes stated in the notices and in the resolutions removing the judges. This we consider a. matter of no importance. We may concede that the Judge can only be removed for the reasons stated in the notice, and still the ojection is not well founded, and the discrepancy is immaterial. The substance of the reasons stated in the notice, and the reasons stated in the removal resolution, are the same, to wit, that there is not sufficient business» to require the retention in office of the official, and that it is necessary for the'welfare of the State to abolish the office and remove 'the .officer in the' interest of public economy. The resolutions of removal set out reasons as grounds for removal, which was in effect a legislative adjudication that such facts existed and adds that the Court has been abolished, a fact which had not transpired when the notice was given, and which was merely supplemental action by the Legislature in pursuance of the previous adjudication. The fact that the office had, since the notice, been abolished may be treated as immaterial surplusage, the important fact being that there was no longer any necessity for either office or officer. It is said, this is a dangerous power to lodge in the discretion of the Goneral Assembly. Grant it. Still, the framers of our Constitution, with the light, of experience and the lessons of history in their minds, so lodged it. Shall we question their wisdom ? So long as the people are to be trusted and they do their duty in selecting representatives, where could it be more safely lodged? It has been a part of our organic law for sixty-five years, and we have been cited to no case of its abuse. The purpose of the removal resolutions now under consideration, is the public good and the economical administration of justice. Ro charge is made of any sinister purpose on the part of the Legislature towards individuals or the public. It is said it is a power that may be used to crush the judiciary, to break down its independence, and to stop the business of the judicial department. But the same object may be accomplished by other modes by the Legislature, if it shall decide" to adopt revolutionary methods. It may unjustly impeach, and thus remove; it may refuse, to pay salaries and expenses, and thus stop the Courts; it may refuse to provide for elections; it may, in other words, overthrow the government, because it handles both the sword and the purse. But unless such power can be lodged in the direct and immediate representatives of the people, it ought not to be lodged anywhere, and ought not to be incorporated into, our organic law. So that, after all, these questions are not for this Court, but for the people, and in placing this control of the judiciary in the hands of the Legislature the people have drawn it as near to themselves as it is possible to draw it under our system of government.

Much has been said, and properly said, as to the necessity for an independent judiciary. There is no feature of our governmental system more vital and important, but the idea must not be pushed too far, and we must remember that, with the exception of the Supreme Court, all Courts exist as a consequence of legislative action. The number, powers, and jurisdiction, local and general, of the inferior Courts are all dependent upon the legislative provisions. The salaries of all Judges, the expenses of all Courts, are paid only in pursuance of legislative action, and, in addition, the General Assembly is given the power to impeach and the power to remove. The true theory of the government is that each department is independent in its sphere. The Legislature can enact laws without dictation from the judiciary. The latter can pass upon their validity and meaning without legislative interference. "W e cannot assume that either will arbitrarily disregard the rights of the other, or trench upon its province, and any argument based upon such premises is unsound and unwarranted. The departments of the government should work in harmony, as component parts of one homogeneous whole, and if each will' accord to the other purity of motive and an earnest desire to enhance and conserve the public; welfare, there will be that co-operation and singleness of purpose which will redound to the highest good of the people. The Courts have the Constitution and the statutes as charts to mark the extent’ of their authority. The Legislature has the same. Constitution as its chart, but in respect to the Leg-: islature the function of the Constitution is not to; confer power and jurisdiction, but to limit it.

The argument that the power to abolish judicial office ^cannot exist, because it can be abused to the extent of destroying the entire judicial system, can: have no force in the construction of the Constitution, and the possibility of abuse of power is never a valid argument against its existence. It has been properly said: “This is an argument often resorted to, and no argument is more fallacious. It assumes that if the power be one that the Legislature might abuse, and in its abuse subvert the other departments of the government, therefore the power does not exist; whereas, it is certainly true that-, the Legislature may, in many modes, in the exercise of unquestioned power, utterly ruin and destroy the. government. The remedy, when the Leislature attempts to exercise power which it does not possess, is in the Courts, but where it simply abuses power that it does possess, the remedy is with the people.”' McFarland, J., in Halsey v. Gaines, 2 Lea, 322, 323.

The causes assigned in these resolutions for the removal of the Judge and attorneys are entitled to the highest consideration, and, if any causes not personal to the officer involved can be sufficient, these reasons of public policy and public economy must be so regarded. It is not necessary in this case, therefore, to consider the question whether the Legislature may arbitrarily remove such an officer, whether for political or personal reasons or because a particular Judge may have ruled contrary to its ideas of law and right. No such case is presented in this record. It is intimated in the Campbell and Halsey cases that a removal, with a sinister design upon the part of the Legislature, would not be allowed. It is not necessary to consider this proposition, as it does not .arise in this case. Whether the Court can revise the action of the Legislature in any case of removal, and question its authority to act upon the' cause made the basis of such removal, is a grave question of much difficulty and delicacy. The Legislature could act arbitrarily quite as readily for personal as for causes of a public nature, and would more likely do so for personal causes than for those of a public or general nature. The danger of arbitrary and unwarranted action is not avoided by confining the causes of removal to personal causes. Perhaps the true rule may be stated thus: In all impeachment and removal proceedings before the General Assembly, if the causes for which removal or impeachment are had are such as are authorized by the Constitution, and the methods pursued in the proceedings are not contrary to those prescribed by the Constitution, the action of the Legislature is final, and cannot be questioned by this Court. If, however, the Legislature should attempt to impeach or remove for a cause' not warranted by the Constitution, or should pursue methods contrary to those prescribed by the Constitution, this Court. would have the power to declare such proceedings void for want of power and authority in the Legislature. If, for instance, the Legislature should attempt to impeach or remove an officer for political reasons, so specified and expressed, this Court could declare such action unconstitutional and void. I do not contend that the power of removal is unlimited, and cannot be, in any event, revised or questioned by this Court.

It is urged that this power of removal is not contained in the Constitution of the United States, nor in the Federal system, nor in the English system of Courts. This is true. The Federal system, as well as the English system, provides for a tenure during good behavior. The history of judicial tenures is not without its lesson. In England, prior to the reign of James II., Judges held their offices at the pleasure of the Crown. This power lodged in the Crown was abused to such an extent that Judge after Judge was removed, until the bench became a mere tool of the Crown. Its' abuse was one of the causes of the English revolution, and in the bill of rights following it the permanency of judicial tenure was first secured, and it was confirmed by the statute of 13 William III., providing for a judicial tenure during good behavior, and prohibiting removals except upon the address of both houses of Parliament. Afterwards, by statute, in the reign of George III., this tenure was made to extend beyond the demise of the King, and full salaries were provided for Judges during their continuance in office. The • power of arbitrary removal of Judges by the Crown was also one of the reasons embodied in our Declaration of Independence for throwing off the English yoke. In the light of these historical events, the Federal Constitution of 1787 was framed, and judges, both Supreme and inferior, were given life tenures of office, with fixed compensation, not to be diminished during their continuance in office. This system of Federal judgeships and tenure is still in force, and whatever may be said by bench and bar in its praise, the people, it may be safely asserted, are not enamored of the system, and would gladly change it. It was strongly commended by the statesmen of the revolutionary period, and by the law writers, such as Story, Kent, and Marshall of a little later date. It was followed by each and every one of the thirteen original States, and by others that came into the union' soon after its formation. It was adopted in Tennessee, and under our first Constitution of 1796, judges held for life with fixed salaries. But the pendulum has swung back in the opposite direction, and it is a significant fact that there are only three State Constitutions in existence to-day that provide for a life tenure of Judges. It was upon this feature of a life tenure for Judges that Story and Marshall and Tucker and others wrote so eloquently, and not upon any power of removal; but their views have not prevailed, for in the great majority of the States the term is fixed at six years.

We speak of these historical facts as tending simply to show the trend of public opinion upon the ' subject of judicial tenures. The history of judicial tenure in Tennessee is even more suggestive. By the Constitution of 1196 Judges were appointed and held for life, with fixed salary and without power of removal. By the Constitution of 1834 they were still appointed, but for only a term of eight years, and subject to removal. By the amendment of 1853 they were made elective by the people, but the tenure of office remained the same, and the power of removal was continued, but slightly modified. It has thus been clearly manifested that the people intended to draw the Judges close to themselves, and through their representatives, as well as directly by election every eight years, exercise some control over tham. This is the system now in force under the Constitution of 1870.

For the reasons herein stated I am constrained to believe that the. Acts and resolutions are all valid and constitutional.