Boswell v. Powell

• Citation: 43 S.W.2d 495
• Parties: BOSWELL v. POWELL.
• Decision Date: 05 December 1931
• Court: Supreme Court of Tennessee

43 S.W.2d 495

BOSWELL v. POWELL.

Supreme Court of Tennessee.

December 5, 1931.

Appeal from Chancery Court, Morgan County; W. R. Officer, Judge.

Bill by W. Y. Boswell against Charley Powell to enjoin defendant from claiming his place on County Board of Education. From a decree of dismissal, complainant appeals.

Reversed and injunction granted.

W. Y. Boswell, of Oakdale, and Davis & Davis, of Wartburg, for appellant.

D. O. Harris, of Harriman, for defendant.

GREEN, C. J.

The complainant was elected as a member of the county board of education, for a term of seven years, by the county court of Morgan county in 1927. In 1930 he was elected a member of the General Assembly of Tennessee. Upon his qualification to the latter position, the county court of Morgan county assumed that he vacated his place on the board of education and proceeded to elect defendant to fill that vacancy. The bill herein was filed by complainant asserting his right to hold both offices and seeking to enjoin defendant from claiming the place on the board of education and from interfering with the complainant in the exercise of the duties of that office. The chancellor dismissed the bill and complainant has appealed.

The principal discussion in the briefs has been upon the nature of the office of a member of a county board of education — whether it is a lucrative office. Section 26 of article 2 of the Constitution provides, among other things, "nor shall any person in this state hold more than one lucrative office at the same time."

Under authority of chapter 115 of the Public Acts of 1925, the county court of Morgan county has directed that members of the board of education of that county be paid $3 a day for the days that they are actually engaged about the duties incident to such membership.

It may be assumed that this is a lucrative office for the purposes of this case. We do not so decide, however, for it has been expressly held in State ex rel. v. Jones, 143 Tenn. 575, 224 S. W. 1041, that, while this is an office of high trust, it is not an office of profit within the meaning of the ouster law.

The constitutional provision above quoted is against any person holding more than one lucrative office "in this state." That is, in the state government. It has not been supposed in this jurisdiction that a municipal office was reached by the provision so as to render the tenure of such an office incompatible with the tenure of a State office. This court expressly held that a Nashville policeman might be commissioned as a deputy sheriff. Lewis v. Nashville, 101 Tenn. 659, 49 S. W. 749. And in Wallace v. Grubb, 154 Tenn. 655, 289 S. W. 530, there was said to be no impropriety in a member of the Legislature holding the office of school director in the town of Loudon. There was apparently, however, no controversy over that proposition in this last case.

Perhaps the weight of authority is to the effect that constitutional provisions similar to ours apply to state officers and do not render a municipal officer ineligible to hold a state office. The decisions, while numerous, are not harmonious. An attempt to review the cases would be without profit. They are...