Caldwell v. Lyon

• Decision Date: 20 March 1935
• Parties: CALDWELL v. LYON et al.
• Court: Tennessee Supreme Court

80 S.W.2d 80

168 Tenn. 607

CALDWELL v. LYON et al.

Supreme Court of Tennessee.

March 20, 1935

Appeal from Chancery Court, Sullivan County; S.E. Miller Chancellor.

Suit by Joseph A. Caldwell against W. D. Lyon and others. From a decree sustaining defendants' demurrer to the bill dissolving a temporary injunction, and dismissing the bill complainant appeals.

Affirmed.

Cox Taylor & Epps and W. E. Miller, all of Johnson City, Worley, Hauk & Minter, of Kingsport, Joe Brown and J. E. O'Dell, Jr., both of Bristol, and John F. Blevins, of Blountville, for appellant.

John R. Todd, of Kingsport, B. R. Sams, of Bluff City, Susong, Susong & Parvin, of Greeneville, Burrow & Burrow, of Bristol, Chas. T. Herndon, Jr., of Kingsport, H. H. Smith, of Blountville, and R. B. Dade and Carl Kirkpatrick, both of Kingsport, for appellees.

DE HAVEN, Justice.

Complainant Joseph A. Caldwell, was elected to the office of county judge of Sullivan county for the term of eight years at the general election held in August, 1926. The act creating the office of county judge, chapter 375, Private Acts of 1921, was repealed by chapter 196, Private Acts of 1933, and the office of chairman of the county court was created by chapter 195, Private Acts of 1933. By the terms of this latter act the quarterly county court of Sullivan county was required to elect a chairman of the county court at its regular April term, 1933, to hold office until the first Monday in January, 1934, at which time the quarterly county court was to elect his successor for the term of one year, or until his successor was elected and qualified. It was further provided in said act that the chairman of the quarterly county court "shall exercise and perform all the duties and functions now provided by law in counties having a County Chairman." Section 2.

At its regular April term, 1933, the quarterly county court elected complainant, Joseph A. Caldwell, chairman of the county court for the term expiring the first Monday in January, 1934. Complainant was re-elected to said office at the January term, 1934, for the term of one year, and was again re-elected to said office at the January, 1935, term of said court for the term of one year.

Complainant accepted the office of chairman of the county court when elected thereto in April, 1933, January, 1934, and January, 1935, and assumed said office. It appears that complainant informed said court when he accepted the office of chairman that he considered the acts of 1933 to be unconstitutional and void, and that he fully reserved to himself all his rights as county judge, together with his right to challenge the validity of said acts. The county court acquiesced in these reservations, and complainant, under the conditions mentioned, accepted the office, accepted the reduced salary, and performed the duties and functions of the office.

The General Assembly of Tennessee, on January 15, 1935, enacted House Bill No. 91, which expressly abolished the office of chairman of the county court of Sullivan county and created the office of county judge. The act named defendant, W. D. Lyon, to hold said office until the next regular biennial election to be held in August, 1936.

Complainant, Caldwell, on January 22, 1935, filed his bill in this cause attacking the constitutionality of the acts of 1933 and the act of 1935, and questioning the motives of the Legislature in their passage. Complainant in his bill asserts he is the legal holder of the office of county judge of Sullivan county and entitled to all the emoluments thereof. In the alternative, he takes the position that in the event the court be of the opinion that he is holding office under the 1933 Legislature, he be declared entitled to said office under such legislation and entitled to all the emoluments thereof. An injunction was sought to prevent defendant from in any way interfering with "complainant's office, and from exercising any alleged rights attempted to be created by said House Bill No. 91." The chancellor granted a temporary injunction.

Defendant demurred to the bill, and filed a sworn answer denying the equities of the bill. The cause was heard upon the demurrer and upon defendant's motion to dissolve the injunction. The chancellor sustained the demurrer, dissolved the injunction, and dismissed the bill.

Nine assignments of error are made in this court by appellant, Caldwell. These assignments, except the sixth, raise the question, in varying form, of the constitutionality of House Bill No. 91, passed January 15, 1935, and of chapters 195 and 196 of the Private Acts of 1933. The sixth assignment challenges the action of the chancellor in holding complainant estopped to question the constitutionality of said acts of 1933.

It is appellant's position in this case that said acts of 1933 being, as he now asserts, unconstitutional as colorable legislation enacted for the purpose of legislating him out of the office of county judge, he remained county judge de jure after September 1, 1934, when the eight-year term to which he had been elected expired, holding over under section 5, article 7, of the State Constitution, providing that "every officer shall hold his office until his successor is elected or appointed and qualified." He then asserts that House Bill No. 91, passed January 15, 1935, is unconstitutional in that it undertakes to name defendant county judge, when he (complainant) was occupying that office as a holdover.

Section 26, article 2, of the State Constitution provides, "nor shall any person in this State hold more than one lucrative office at the same time."

Appellant three times accepted election to the office of county chairman. He assumed the duties of that office. He accepted the salary of $1,200 per year attached thereto, as fixed by chapter 195, Private Acts of 1933. He now asserts that he was county judge during all the time he was county chairman, holding over after the expiration of his term.

The effect of appellant's acceptance of the office of county chairman vacated the office of county judge. A constitutional incompatibility existed, similar in its effect to that of the common law, and, as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited operates ipso facto absolutely to vacate the first. Calloway v. Sturm, 1 Heisk. (48 Tenn.) 764; State v. Grace, 113 Tenn. 9, 82 S.W. 485; State v. Slagle, 115 Tenn. 336, 89 S.W. 326; 22 Ruling Case Law, 418; 46 Corpus Juris, 947.

The circumstance that appellant might have successfully assailed the constitutionality of said acts of 1933 as colorable legislation to displace him as county judge is now immaterial. He vacated that office when he accepted the office of chairman, and this vacation was effective regardless of whether or not he might have successfully attacked said acts.

In Farrell v. City of Bridgeport, 45 Conn. 191, it appears that the charter of the city provided for the appointment of policemen to hold office until regularly removed or suspended. Farrell held the office of policeman for three years under the charter, when the common council, under a power given by the charter to make ordinances relative to the city police, passed an ordinance that the appointment should be for one year. The court said:

"The council could not of itself, by the enactment of an ordinance declaring that a policeman shall hold his office by virtue of an annual

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