explaining, as an example of a statute that was clearly unconstitutional on its face, one that attempted to establish an inferior court without following the process mandated in Article 6, Sections 1 and 4 of the Tennessee Constitution.
How later courts described this case
- explaining, as an example of a statute that was clearly unconstitutional on its face, one that attempted to establish an inferior court without following the process mandated in Article 6, Sections 1 and 4 of the Tennessee Constitution.
- “We do not have any sympathy for the practice of raising constitutional questions for the first time on appeal, unless a statute is so obviously unconstitutional on its face as to obviate the necessity for any discussion.”
- “We do not have any sympathy for the practice of raising constitutional questions for the first time on appeal . . . .”
Written by the judges who cited it.
The opinion
Tomlinson, Justice
(dissenting).
Tennessee, acting through its General Assembly, created the office of City Judge of Elizabethton and said to such Judge in substance “I am going to make you a Carter County Justice of the Peace to the extent of offenses committed against the State (not against the City) within the territorial limits of Elizabethton ’ ’.
Subsequently Tennessee, through its Legislature, created the General Sessions Court of Carter County. Therein it added to, in certain respects, and subtracted from in other respects, the powers and jurisdiction of the Justices of the Peace of Carter County. The majority opinion says that such action of the Legislature had no effect upon the jurisdiction of that Justice of the Peace who in Elizabethton is its City Judge. I am unable to follow that reasoning. It seems to me to follow as night follows day that when the Legislature changed the jurisdiction of the Justices of the Peace of Carter County such change automatically had the same effect upon that particular Justice of the Peace of Carter County who held his office as such because he was the City Judge of Elizabethton.
Moreover, any other conclusion seems to me to create an anomaly. For instance, if within the City of Eliza-bethton an individual is charged with violating the State law of transporting more than a gallon of whiskey he can waive indictment and a trial be had and punishment, if *473 any, inflicted by tbe General Sessions Judge provided tbe warrant is issued by, and returnable to, tbe General Sessions Judge.
On tbe other band, if tbe person swearing out that warrant should apply to that Justice of tbe Peace who is tbe City Judge, then that official is without authority to do more than bind him over to tbe grand jury if tbe evidence points to guilt. I am unwilling to attribute to tbe Legislature an intention to creat such an anomalous and contradictory situation.
Por tbe reasons stated, I feel that I must respectfully dissent.