The opinion
Tupjstey, J.,
delivered the following dissenting opinion:
On the 18th of June, 1879, W. H. Washington, Attorney General, moved in the Circuit Court of Davidson county, that the office of trustee for^hat county be declared vacant, and produced to the court the bonds of W. A. Knight, trustee, and a paper claimed to be the report of the grand jury that the bonds were irregular, informal and insufficient. A subpoena instanter was issued for Knight to appear before the Judge of the Circuit Court at 10 o’clock, a. M., June 19th. The subpoena is not in the transcript, but is ■shown to have been issued in pursuance of an order of record of the Circuit Court. Subpoena could have performed no office in this proceeding: 1. Because there is nothing in the law to authorize its issuance. 2. It was issued by the clerk and not signed by the Judge, as the law requires. 3. If it could at any time have been treated as the requisition, the order made on the 20th of June, and the service of a copy of the order, signed by the Judge, on Knight to appear in obedience to it, was an abandonment of the subpoena instanter, which is no further taken notice of; the proceeding in the matter is entirely upon the requisition of 20th June, and as will be seen hereafter, the opinion of the Circuit Judge treats the requisition of 20th June as the basis of his action.
*419 On tbe 19tb the Judge was sick. On the 20th Knight appeared. It was ordered “that Knight be granted until the first day of July to give new and additional bonds before the Judge of the Circuit Court of Davidson county, and if he fail to do so on or before the first day of July, his said office will be declared vacant, and it is further ordered that said Knight be notified of this entry.” A copy of the entry was served upon Knight.
On the 5th July, the Circuit Judge delivered an opinion declaring the office of trustee vacant.
On the trial of the motion the Attorney General read, over the objection of Knight, what purported to be a report of the grand jury, addressed to “ Hon. James M. Quarles, Judge of the counties of Davidson and Rutherford,” and embracing the offices of Sheriff, 'Chancery Court Clerk, Criminal Court Clerk, Judge of the County Court, etc.
Knight moved to be permitted to justify the sufficiency of the existing or original bonds — the motion was disallowed. To this action he tendered a bill of exceptions, which was signed on the 1st of July, the day fixed by the order of the court and requisition. Knight appeared and presented additional bonds; this tender of bonds was intended as a compliance with the act of 29th January, 1879.
His Honor, the Circuit Judge, in his opinion giving reasons for his refusal of the bonds, says: “ There is not good and sufficient security provided for more than $205,132.50, or $37,867.50 less than the amount required by law to be secured; and when an exam *420 ination is made of the sureties on which it is claimed' that $205,132.50 is secured, it is clearly to be seen that the amount dwindles down to $150,000 or $175,--000, if not even to a less figure.”
On the 7th of July, Knight moved the court to-change or modify his order declaring the office vacant,, and allow him until the 10th of July to increase the security and complete the sufficiency of his bonds.. This was refused, and Knight excepted.
On July 8th, Knight presented his petition, with affidavits of Ament, Ensley, Sax and O’Connor, and asked to add additional security to that already given, of $103,000 to ‘his bonds — this was refused.
On the trial, the affidavits or some statements of third persons were read as to the value of property owned by the proffered securities. Knight objected, because he had no notice of the taking, and no opportunity to cross-examine. His objection was overruled.
The proceeding is based upon sections 778, 779 and 780 of the Code, as follows: “All other public officers who are compelled • to give official bonds may be required by the court or officer whose duty it is to take or approve such bonds, to give additional security or new bonds in the following cases: 3. "When the grand jury of the county or a majority certify the insufficiency of the original bond.” 779. “The requisition to give additional bonds shall in all cases be in writing and signed by the officer making it, shall state the day and place when and where the officer-cited shall appear and give such bond, and a copy *421 thereof shall he personally served on such officer before the day specified therein.” 780. “Such officer shall give the additional bond within ten days after the day specified in the requisition, and failing so to do he vacates his office, and the officer making the requisition shall at once certify the fact to the appointing p^wer, by whom the vacancy shall be filled.”
The construction of these sections involves a consideration of sections 725, 726 and 727 of the Code, to which the sections above quoted are addenda, viz:
“Sec. 725. The clerk of every County Court shall produce to the Judge of the Circuit Court for his examination, at the first Circuit Court in his county, on the 2d day of the term after the first Monday in aLpril of each year, the bonds of all officers taken in said year by the County Court.”
“Sec. 726. If, upon examination, said bonds shall in the opinion of the Judge have been taken according to law, he shall write upon them ‘ examined and approved/ and sign his name thereto. But if any of said bonds shall not have been taken agreeably to law, the clerk of said Circuit Court shall issue a subpoena instanter for such officer to appear before said Judge immediately with surety according to law.”
“Sec. 727. If, upon service and return of said subpoena, the officer shall fail or refuse to appear and -enter into bond with surety, the Judge shall declare the office vacant, and another election shall be held within twenty days thereafter.”
The Circuit Judge denied an appeal, and the case is before us by writ of error and supersedeas.
*422 For the State and county it is insisted this court, has no jurisdiction to revise the action of the Circuit. Judge — that being, it is argued, merely ministerial and not judicial. a
The motion to vacate the office of trustee is a. proceeding against the incumbent in that office, in which,, as in other proceedings, he has the right to be heard.
The questions in the case are, first, are the bonds executed in the County Court sufficient? If this is answered in the negative, then are the bonds offered, in addition to the original, sufficient with the original,, to answer the requirements of the law? These ques--tions necessarily demand investigation of law and fact. 1. Do the bonds in form and undertaking bind the parties thereto for liability for the official default of the principal? 2. Are the parties to such bonds of sufficient solvency to meet any default or neglect of the principal?
In these investigations, it cannot be denied to the officer that he has a right to be heard by himself and counsel. The hearing must be had in conformity-to rules of law and evidence. The officer has the unquestionable right to confine the investigation to legal, competent and full proof, and the court or officer trying the matter has no right to depart from well-established rules of law. In Wade v. Murray, Judge-Totten, in a dissenting opinion, says: “ The person legally entitled to the office by a valid election, has. a property in it.” Knight had not only been legally-elected to the office of trustee by a valid election,, but had actually been inducted into it, and was in the- *423 actual exercise and discharge of its duties. The principle announced by Judge Totten, of property in an office, is a -well’ settled and universally recognized rule of law.
By section 8, of article 1, of our bill of rights, it is ordained: “ That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner-destroyed or deprived of his life, liberty or property, but by the iudgment of his peers or the law of the land.”
This ordinance is certainly broad enough to cover whatever of interest the person elected to and installed into an office may have in the office, even though a property interest were denied.
In Jones’ heirs v. Perry, 10 Ter., 59 , Judge Green says: “ The term ‘ law of the land/ in the Constitution of Tennessee, means a general and public law operating equally upon every member of the community.”
Judge Cooley, in his Constitutional Limitations, page 353, says: . “ Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College case. By the law of the land, is most clearly intended the general law — a law which hears before it condemns; which proceeds upon inquiry, and renders judgmeñt only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which passes under the form of an enactment is not, therefore, to be considered the law of the land.”
*424 Judge Cooly adds: “The definition here given is apt and suitable as applied to judicial proceeding, which cannot be valid unless they proceed upon inquiry and render judgment only after trial.” It is entirely correct also in assuming that a legislative enactment is not necessarily the law of the land. The words “the law of the land,” as used in the Constitution, do 'not mean a statute passed for the purpose of working wrong. That construction would render the Constitution absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses, “You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it.”
Keeping this definition in mind, we ask, Has the law heard in this case before it condemned? Have the general rules which govern society been applied ? Has the law proceeded „ upon inquiry, and rendered judgment only after trial? Is it the law of the land that testimony, the taking of which was ex 'parte, perhaps in secret, of which taking Knight had no notice, and the right of cross-examination actually denied him, may be read in evidence against him over his objection? Would such holding be a law that hears before it condemns — a law that proceeds upon inquiry, and renders judgment only after trial? Under such proceedings has Knight been deprived of his property by *425 “the law of the land?” Is it the law of the land that an unauthenticafced paper, without the shadow of proof as to verity — a paper containing the secret and ex parte action of a grand jury and mainly based, as shown upon its face, upon illegal and incompetent testimony, and merely said to be the original record of another court of record, may be read in evidence against one, over his earnest objection? Is it the law of the land that the bonds of Knight should have been held insufficient without proof; and that, too, when he was asking to show their sufficiency by proof? Is it the law of the land that- a judge or court may arbitrarily decide that additional bonds shall be given to a fixed amount, without inquiry into the sufficiency of the existing bonds, to see whether they are sufficient or not; and if insufficient, to see to what extent and amount additional bonds shall be required? Is it the law of the land that the Circuit Judge may, by force of the statutes under which this proceeding is had, totally ignore, without inquiry or examination, the original bonds of Knight, and require him to execute additional bonds for the full amount of the penalty ?
All these things have been done here, and the questions are distinctly and prominently made by the record in this case, and involve rights that shoiild not be frittered away by construction. It is said, however, that the circuit judge was only the ministerial agent of the State and county, that his acts were not judicial, and therefore not subject to revision hy this ■court. To support this theory several Tennessee au *426 thorities are relied upon. First, in the matter of E. Wickersham, trustee, etc., 6 Col., 335 . The trus tee was regularly notified to appear as the statute di rects. He did appear on the 27th of June, the day speeified, when he asked and obtained time till the 7th of July (ten daya), when he failed to appear. The court declared the office vacant, and certified to-the county commissioners. This was a strict and literal pursuance of the statute. He had been duly summoned, the day distinctly specified, he appeared and asked and obtained from the court the entire time-allowed him by law to execute bond, and then failed to appear. Of course the statute having been pursued by the court, and he wholly failing to appear on the-last day named by law, as he had himself appointed,, judgment by default was pronounced against him, and' this would be so in any cause. It was according to.the usual course of the court as prescribed by the “law of the land.”
In the case of Thompson v. The Justices, the sheriff elect refused to produce vouchers that he had accounted for and paid all State and county taxes that before that time' he was bound to account for and pay, and the securities on his bond were deemed insufficient, and having refused to justify", the justice» refused to induct Thompson into office. The action of the justices strictly accorded with the requirements of the law. Theyr offered to do just what the law demanded. Thompson defied it, and positively refused to comply with any of its provisions. Not so with *427 Knight, be proposed to do all the law imposed upon him to do.
The case of Gray, 9 Hum., 514 , presents simply ¡a question of police regulation, to be exercised by county courts in their discretion, permitting or refusing to permit free negroes to remain in the county.
In Wade v. Murray, 2 Sneed, 52 , Judge McKinney holds that no relief could be granted, and says-that there is a special tribunal created for the trial" of contested election cases, of which the person holding the office of chancellor is constituted judge; that the tribunal was so constituted as to reasonably justify the presumption that its decisions would do equal and! impartial justice according to the law of the land, and therefore ought to be satisfactory to the parties. “And-no doubt the framers of the law thought it better-that an erroneous decision upon the facts or law should be submitted to by a single unsuccessful aspirant than* that the public should be subject to the great inconvenience and mischief of leaving the administration of justice suspended or impeded by a protracted litigation in the different courts. For this reason we suppose the Legislature deemed it proper the summary decisions of the chancellor should be conclusive.”
The case before us does not present a similar state-of facts in any particular. That the court misconstrued the intention of the Legislature in holding that it intended to make the summary proceeding before-the chancellor conclusive, is made manifest by the act of the next Legislature giving the right of appeal to-either party in such cases. The 'Wade and Murray *428 ■case was decided at the December term, 1854, and tbe act referred to passed in 1855. The case before us does not present a similar state of facts in any particular. The contested election was a proceeding to ascertain the vote and will of the people, and therefore political; the contest was between claimants over adverse claims to the right of property in the office. In this case the will of the people had been ascertained and settled by thve proper authorities created by law for the purpose, and the relation of Knight to the proceeding is that of a defense of a right actually vested in him. A contested election has the effect of hindering for the time the oj'ganization of the State or county government; it produces a hitch in its machinery, and suspends the operation of its functions. Knight is not an unsuccessful aspirant, asking to contest the claim of his adversary to an election. He had, beyond question, the legal right to and possession of the office at the institution of the proceedings, and no one is controverting that right and legal possession. In his case the public is in no danger of being subjected to the great inconvenience and mischief of having the administration of justice suspended or impeded by protracted litigations, for the reason that being already inducted into the office he can go on in the discharge of its duties until the litigation is ended, the ■only possible interest the public can have in the matter being that its revenues are protected during the litigation, and it is not only in the power, but is the positive duty of the courts to see that the publie revenues are protected by sufficient bonds, as was done *429 in tbis case, and of these bonds no complaint 'has been made. Besides, there can be no protracted litigation, as the law makes it the duty of courts to advance upon the dockets causes of this character without regard to the time of filing. In the case of the «contested election, so long as the contest lasts the office is vacant, and during the time mischief and inconvenience, suggested by Judge McKinney, might arise and continue. In that case no property in the office had attached, the right to the office was the subject matter of litigation. Here the right to and property in the office are not contested, nor even denied. In the Attorney-General ease there was no attempt to evict, but an effort to defeat an entrance. Here the purpose of the litigation is to evict an acknowledged rightful tenant by virtue of election and induction. Suppose, in the Attorney-General case, the officer had been inducted into the office and taken upon himself the discharge of its duties, and the proceedings had been instituted against him to oust him from the office, could it be holden that the action of the chancellor, or of any inferior tribunal, would be final. Take a case arising under our statutes making a misdemeanor (drunkenness for example) a forfeiture of the office, could we hold .the verdict and judgment of the jury and inferior court final and conclusive against the accused? Certainly not. The examples put and the case at bar involve the questions of forfeiture of office, the inconvenience and mischief to the public are-equal and the same. I can see no substantial ground of difference or distinction when we come to apply *430 the law. The public has certainly as much interest: in being rid - of a drunken judge or attorney-general -as it can have in getting rid of a trustee whose bonds, to say the worst of them, are merely questionable as to sufficiency and solvency, and the argument of inconvenience applies with quite as much force. It is admitted that Knight is not without remedy if the judge has departed from the law in his action. That, as said by Judge McKinney in the "Wade and Murray case, “in a case showing such a substantial departure from the course of proceeding prescribed in the -statute as would render the proceedings void, the cer-tiorari would be the proper remedy." And it is here mow- insisted that Knight’s only remedy, if he had ■any, was by certiorari to the circuit court. To so hold we must determine that the circuit court is a superior tribunal to the circuit judge, and that an act officially performed by the circuit judge as such may ’be removed by the writ of certiorari from the circuit judge to the circuit court, presided over by the identical circuit judge whose act is complained of. In. other words, that Hon. Frank T. Reid, circuit court, may revise the action and rulings of Hon. Frank T. Reid, Judge of the Circuit Court, both being done in an official capacity. This, to say the least of it, would be a curious anomaly in the machinery of judicature.
While, as above recited, Judge McKinney does say the certiorari would be the proper- remedy, he must 'be understood as speaking in reference to the facts of ■the case he puts, and the jurisdiction of the court *431 arising upon these facts. He cannot be understood as holding that to be the only remedy under all circumstances. It is also admitted that if Judge Reed had, without doing more, refused to ' accept sufficient bonds when offered, he might have been compelled by man■damus. If this be so, as it clearly is, why then, if the facts be as claimed, that his Honor the Circuit Judge not only refused to accept sufficient bonds, but went further and declared the office vacant, and certified to the appointing power, and thereby destroyed the utility of a mandamus, does the double error destroy all right to redress and cut Knight off from all means of correcting errors? Certainly such things cannot be. It must naturally and legitimately result that Knight, if at any time entitled to have the action of the circuit judge reviewed, is at all times entitled to such relief, and by means of such writ as will preserve his facts and present his case to the revising court. If there is a revising jurisdiction in the case admitted, there must be a revisory jurisdiction in a case embracing the admitted one. How can the distinction, as admitted, exist - consistently with the theory of the exclusiveness and finality of the decision of the ■circuit judge? If there be exceptions to the rule, on what do they rest? When and how do they begin, and when and how do they cease? If the jurisdiction of the special tribunal, as it is said to be, is conclusive in part it must be so in whole, if revisable in part it must be so in whole. By what rule is a jurisdiction over a single case made divisible, conclusive in part and appealable in part. Is there, in the *432 language of Judge McKinney, such a substantial departure from the proceeding prescribed by the statute-as will render the proceedings void.
If we observe the injunctions of the statute the affirmative of the proposition is unquestionably true. The statute commands, “the requisition to give additional bonds shall in all eases be in writing, and signed by the officer making it; shall state the day and place, when and where the officer cited shall appear arid give such bond, and copy thereof shall be served on such officer before the day specified therein.” Such officer shall give the additional bonds within ten days after the day specified in such requisition, and failing so to do he vacates his office, and the officer making the requisition shall at once certify the fact to the appointing power, by whom the vacancy shall be filled.”
The first day of July is the day and the only day specified in the requisition, and by the statute, as we have seen, Knight was entitled to ten days after the first, or until the 11th of July, to comply by giving additional- bonds, if the court should determine he must give them. The statute giving the time is not merely directory, but is peremptory and positive, and leaves no room for any other construction than that indicated by its plain language. If, however, we could entertain a doubt upon the face of the requisition, the judge who wrote and signed it, and whose duty it was to do so, and construed it, has relieved us of all trouble. In his opinion in the case he says, “A requisition, signed by myself as judge of the circuit *433 court of tbis district, was made on said Knight to give additional bonds in the same penalty and conditions as the first official bonds, and naming the first of the present month (July) and the circuit court room as the day and place when and where said Knight should appear and give such bonds.”
Instead of conforming to said statute and his requisition, Judge Reid ’decided the matter finally on the 5th of July instead of the 11th, and refused to take any further action in the matter, although, before the expiration of the ten days, Knight had offered bonds estimated by Judge Reid to be worth at least $250,000, an excess of $11,000 over the amount demanded by him, which was $242,000. The provision for time is an essential one in the statute, and it is only upon its observance the circuit judge is authorized to exercise the jurisdiction given by it. Its character demands for it a strict construction. So that whether the act to be done be either judicial or ministerial, .if it do not pursue the statute conferring the jurisdiction it is void, and more especially so in cases of special and novel tribunals.
That the action of the circuit judge under the statute is judicial, it seems to me cannot admit of a doubt. The first thing he is called on to do when a case is presented is to construe the statute and determine his duties under it. This being so, and it being the rule that no appeal lies from his construction, we may have as many different constructions as there are circuit judges in the State, resulting in endless confusion, mischief, and inconvenience. We *434 test tbe theory of the finality of the decision by this case. Suppose the circuit judge had concurred in the view of the attorneys of Knight that the- act under which the motion was made was unconstitutional and void, would such holding have been conclusive, though the bonds may have been worthless? If so, the public would be without relief. Is it to result that the constitutionality of a law is to depend upon the diverse opinions of the several circuit judges in the •State, and be imperative because held void in some circuits, and operative because held to be constitutional in others, and partially operative and partially not in •others because so held by circuit judges? Or, being intended as the law of the land, must the authoritative construction come from the Supreme Court of the -State? Again, if the circuit judge should hold bonds insufficient in substance, form and solvency, to be sufficient, there is no relief. His rulings are binding upon all courts upon the idea of finality. If it be •answered that a court of chancery might relieve, the reply is, the action of the circuit judge constitutes a plea to the jurisdiction. If, however, this be waived, the action of the chancellor upon both law and facts is revisable in this court; or if a court of chancery is resorted to in the first instance, its jurisdiction is defeated by the law creating the special tribunal.
If the Legislature intended to make a ministerial agent merely, why select a circuit judge, who may have a dozen or more counties in his circuit? Is it to be infered that whenever a case arises under the •statute he must, regardless of his term times elsewhere, *435 go to tbe county in wbicb tbe trustee is to be required to give new bonds, or is be at liberty to wait till tbe time for bolding bis court in that county comes round? If the former, then one of the other eleven counties entitled to his presence may suffer because its business is permitted to remain untried upon its dockets. If the latter, then the argument of mischief and inconvenience from delay is suggested. The officer who is operating upon insufficient and insolvent bonds may hasten the collection of public revenue, pocket it and abscond. Instead of encountering such risks, if it be a mere ministerial agent who is wanted, why not select the sheriff of the county, the judge or chairman of the county court, or some other official of the county who is presumed to be better acquainted with the financial condition of the people of his county than a circuit judge living out of it can be? Or if these will not answer, why not provide by law for the election or appointment of such agent instead of distracting the duties and labors of a circuit judge?
Recurring to the statutes upon the subject, and construing them together, it seems to me there can be but little doubt of the judicial character of ■ the duty imposed. In the first place, we see it is made the duty of the clerks of the county court to produce to the judge of the circuit, court, for his examination, at the first circuit court in his county on the second day of the term after the first Monday in April in each year, the bonds, etc., for examination. That this must be done in term time is expressed by the statute. Then we have the provision for insufficiency be *436 cause of the insolvency, death or removal of securities. Then the provision in case of good reason to fear the public interest may suffer for want of new and additional security, and then the provision for action upon the certificate of the grand jury, or a majority of them. In this connection it is to be remembered that grand juries are never in session except in term time; that at the time of the passage of the act circuit courts had to organize grand juries, and to give them these acts, or so much of them as pertained to their duties, in charge. Until a late period' no other courts had grand juries — there are but few exceptions now. Even since the passage of the law, and after the organization of the criminal court for Davidson county (and perhaps even now it is so), it was the duty of the ’circuit court to organize and charge the grand jury, and receive their returns, etc.
I know of no authority, and none has been furnished, authorizing a grand jury to certify, as was done in this case, to a judge of a criminal court touching a matter over which he has no jurisdiction. In all the cases provided for, inquiry must be made by the circuit judge. If by statute the judge can only act in term time and while sitting as a circuit court, it follows as of course on an extention of the duty in the same matter, and over the same parties, and for the same ends and purposes, and without an express change of the time and manner of performing the enlarged duty, that such duty must be performed in the same way as is the duty first embraced, but subsequently enlarged, and so requiring would imply on the part *437 of tbe Legislature a purpose to keep records of the proceedings. When any of the matters embraced in the statute are brought to the attention of the court, the officer whose bonds are impugned must be summoned, this is nothing more nor less than an action against him to try the sufficiency and solvency of his bonds, by virtue of which he holds his office, and is entitled to its emoluments. A casé between him and the State and county exists to all intents and purposes, and both parties have the right to be heard upon all questions arising in the matter, and to confine and be- confined to legal testimony, and to demand and have from the court proper and lawful rulings upon the same, as in other cases involving rights and property. These rules have not been observed. Illegal testimony was admitted and competent testimony was rejected. “The law of the land” has not been administered. It is nowhere provided in the law that the circuit judge shall have exclusive and final jurisdiction of the case. There is nothing in the statutes beyond a conference of original jurisdiction. The Constitution does not confer such power upon the Legislature. The giving of such power must be alone by judicial construction, wholly unauthorized, as I think, by see. 1 of article 6 of the Constitution of the State providing for a judiciary.
If special tribunals of conclusive jurisdiction may be created, the law creating them must be strictly construed, and nothing left to intendment. Such laws are in ovations of a well recognized, acknowledged, and cherished principle of our institutions, that a party *438 aggrieved because he bas not had the judgment of' the law pronounced upon the facts of his case, has the right to have such grievance redressed by the court of last resort in the State — a rule intended to prevent the evils that might come of the ignorance, willfulness or partizan conduct of courts composed of one man with conclusive power. It suppresses the temptation of bribery and the danger of corruption. There is no principle nor the slightest element of one in our system of government that authorizes or countenances the lodgment of arbitrary power in the breast of one man, no matter what his official relation to society may be. The entire genius and spirit of the government oppose it, and are at war with it. There is nothing to authorize the conclusion that the tenure of office or property is or can be dependent upon the will of one man, or a single official. "Were it otherwise the ruin of the State might result from that state of high political excitement common to us. The combinations in the organization of the government make it conservative and preserve it. They are checks upon fraud and securities against fraudulent conspiracies between the individdal in office and outside influences.