On Petition to Rehear
We have had filed with us a very forceful re-argument of one proposition heretofore submitted and passed on by us in this case. The petition to rehear concedes this fact. Beginning at pages 446, 447, of 310 S.W.2d, we discussed the questions here raised by this petition and to our satisfaction, answered the same.
The present petition and re-argument is made by one of the most eminent lawyers in the State and one that we have the very greatest respect for. We must respectfully disagree with his opinion as stated in this' petition to rehear for the reasons set forth in our original opinion in the pages above referred to.
It is now again argued that the portion of Section 49-222, T.C.A., which we quoted, is not applicable to a superintendent of public instruction when elected by the people. One of the reasons assigned for this is the following Section of the Code, that is, Section 49-223, T.C.A., which has to do with the County Superintendent elected by popular vote. This Section merely provides that when he is elected by the popular vote he shall serve for four years in the term beginning at so and so. The Section has absolutely nothing to do with the qualifications of the Superintendent, where he shall qualify and how he shall make these qualifications known.
*234These two Sections of the Code (49-222, and 49-223, T.C.A.) are Chapter 36 of the Public Acts of 1943. The caption to that Act is:
“An Act to provide for the election, qualifications and term of office of County Superintendents of Public Instruction. ’ ’
They were carried in the old Williams’ Code as sec. 2320b, there was no separation — they were not two sections of the Code. Thus when we read them together and find one paragraph which carries into effect the way that a County Superintendent is elected, that is by the County Court and then specifying his qualifications, that is that he shall possess “all qualifications therefore now required by law and upon his election”, shall do thus and so as quoted in our original opinion. Then the next paragraph in this Act is what is now relied on here by the petition to rehear, 49-223, T.C.A., which says that in all cases where the County Superintendent is elected by popular vote his term shall be, so and so. Clearly this Section and this section of the original Act does not change or alter the basic principles in the preceding Section as to qualifications and as to how the Superintendent shall qualify. We think it fundamental law that this general law applying to all superintendents as to how they shall qualify, and, where is applicable even though they are elected by the County Court or by the people and for this reason we must strictly adhere to our reasoning as set forth in the original opinion. We feel that if counsel re-reads Wolfenbarger v. Election Commission, 166 Tenn. 548, 64 S.W.2d 12, cited in our original opinion, he must agree with us that the County Court is the proper tribunal in which this suit is to be instituted.
*235It is fundamental that where a Private Act calls for different qualifications for a Superintendent of Public Education to that as required by the general law that such an Act is unconstitutional. Gallien v. Miller, 170 Tenn. 93, 92 S.W.2d 403. This, the election of the County Superintendent by the County Court has been fundamental in our law since the establishment of the common schools in this State. This provision was carried in the old Shannon’s Code as Section 1410, and originated with Chapter 25 of the Acts of 1873, where it was provided that the County Superintendent for each county shall be elected by the County Court, etc.
Counties soon began to want to vote on their County Superintendents themselves and not leave it to their elected representatives in the County Court and these various Private Acts were passed in various counties of the State to elect one by a vote of the people. Clearly this was right and comes clearly within Article 11, Section 17 of our Constitution which provides:
“No County office created by the Legislature shall be filled otherwise than by the people or the County Court. ’ ’
Clearly a County Superintendent elected by the County Court or by the people comes within this constitutional provision.
Sections 49-220 and 49-1214, T.C.A., set forth the qualifications necessary for the office of County Superintendent. Section 49-222, T.C.A., sets forth what is necessary for bim to do generally in all counties of the State whether elected by the County Court or by the people, those things as set forth in our original opinion, that is, *236that he shall execute bond and take an oath to faithfully discharge his duties before the County Judge. Thus as we see it under the authority of Wolfenbarger v. Election Commission, supra, this suit was properly instituted in the County Court.
We have against very carefully, by reason of our respect for counsel who filed this petition and with an abundance of precaution to try to be right, and we know that we are all human and all humans are subject to mistake, made a thorough restudy of the matter and after doing so we are more constrained than ever to hold to the opinion as expressed originally herein. It is for the reasons above expressed that the petition to rehear must be overruled.