State ex rel. Swann v. Freshour

Me. Justice Dyee,

(concurring).

The issue is whether the General Sessions Court of Cocke County has such jurisdiction as to bring it within the ambit of T.C.A. see. 17-119, since it has jurisdiction to issue fiats for extraordinary process, which is a part of the jurisdiction imposed in the chancery, circuit and criminal courts.

The decision will require a construction of T.C.A. sec. 17-119 to determine the legislative intent of this statute *490as applied to the facts of the case at bar. It is the clear intent of this statute to require judges of certain named courts, as an additional qualification, be authorized to practice law in the courts of Tennessee. The legislature having made this requirement of certain named courts, then made the same requirement of other courts, if they were “courts exercising the jurisdiction imposed in” either the chancery, circuit or criminal courts. The question resolves itself to the intent of the legislature in the use of the words “the jurisdiction” as such words are used in this statute. Did the legislature by use of the words “the jurisdiction” mean any of the jurisdiction imposed in the chancery, circuit or criminal courts:, or do these words mean a part of the jurisdiction; or do they mean all the jurisdiction? To this extent there is an ambiguity in this' statute.

In First National Bank of Memphis v. McCanless, 186 Tenn. 1, 207 S.W.2d 1007 (1948) we find the following:

This Court takes the view that in arriving at the legislative intent, we must consider not merely the words or phrases used, hut also the background, purpose and general circumstances under which they were used. 186 Tenn. 8, 207 S.W.2d 1009.

■ The judicial history of this state reflects that for many years, in certain actions, there has been concurrent jurisdiction as between justice of peace courts [predecessor to general sessions courts) and circuit courts. A code section (T.C.A. sec. 16-506) first enacted in 1835 refers to concurrent jurisdiction between the circuit courts and justice of peace courts in actions on contract up to a certain dollar amount. There is also concurrent jurisdic*491tion in tort actions, except libel and slander, np to a certain dollar amount.

It is presumed the legislature in enacting T.C.A. sec. 17-119 had, and acted in respect to, full knowledge of the judicial history of the state and the fact there existed, at the time of the enactment of this statute (17-119), concurrent jurisdiction in some instances between general sessions courts and circuit courts. ■ It is also presumed the legislature, at the time of the enactment of this statute (17-119), had knowledge, by Chapter 109, Public Acts of 1959 and various Private Acts, there existed a state wide system of general sessions courts. See Trotter v. City of Maryville, 191 Tenn. 510, 235 S.W.2d 13 (1950). It is not logical to'assume the legislature having full knowledge of these facts would intend to include all the general sessions courts within the ambit of this statute (17-119), which would be the result if the words “the jurisdiction” meant any jurisdiction exercised by the chancery, circuit or criminal courts. I think the legislature by this language meant to include only courts exercising a reasonable amount of the jurisdiction generally imposed in the chancery, circuit or criminal courts.

I do not think the jurisdiction to issue fiats for extraordinary process is such as to bring the General Sessions Court of Cocke County within the ambit of T.C.A. sec. 17-119. The wisdom of allowing a lay judge to have this power may well be questionable, but such is within the discretion and wisdom of the legislature and not the courts.

I concur in the opinion by Chattix, Justice.