Day v. Sharp

• Decision Date: 18 November 1913
• Parties: DAY v. SHARP.
• Court: Tennessee Supreme Court

161 S.W. 994

128 Tenn. 340

DAY v. SHARP.

Supreme Court of Tennessee.

November 18, 1913

Appeal from Criminal and Law Court, Claiborne County; Xen Hicks Judge.

Petition of resistance by W. N. Day against the induction of A. K Sharp into office of trustee of Claiborne County. Judgment for Sharp, and Day appeals. Reversed.

John P Davis, of Tazewell, for appellant.

Paul E Divine, of Johnson City, and Montgomery & Montgomery, of Tazewell, for appellee.

WILLIAMS J.

A. K. Sharp, claiming to be the holder of a certificate of his election to the office of trustee of Claiborne county at the regular August, 1912, election, presented himself with his certificate to the proper inducting authority for induction into the office. Thereupon W. C. Parkey, who was the then incumbent of the office of trustee and also a candidate for re-election, filed a petition in pursuance of the statute resisting Sharp's induction on the ground, among others, that at the date of the August election, and also at the date of Sharp's application to be inducted, he (Sharp) was a defaulter to the treasury as circuit court clerk of the county.

Upon hearing the case the inducting authority adjudged that by reason of said default, found to exist, Sharp was ineligible to hold the office of trustee, but further that a vacancy was thereby occasioned in the office of trustee; and this last finding was certified to the quarterly county court to the end that that body by an election by it might fill the office thus adjudged to be vacant. The quarterly county court proceeded thereon to elect Sharp to the office in respect of which he had been held to be ineligible.

Sharp procured a certificate of election from the quarterly county court for induction thereon, and on its presentation W. N. Day interposed his petition of resistance as a citizen and taxpayer of the county on the ground that Sharp was a defaulter. Sharp, intermediate the popular election and the date of the election attempted to be held by the quarterly county court, settled his default in an effort to qualify himself for the office.

Defendant Sharp does not claim under the election at the polls in August, 1912; but, on the contrary, he insists that he acquiesces in the decree of the county court, the inducting authority, to the effect that he was on and after that election day a defaulter, and that the election was therefore void; and he insists that thereafter, and before his election by the quarterly term of the county court, his payment of the amount of his default rendered him eligible at the later election. He relies alone upon his election by the quarterly county court to fill the claimed vacancy.

It is an insistence of Day that Sharp could not make himself eligible by thus purging himself of the taint of the default. It is argued that it would be opposed to the policy as well as the provisions of the law to permit one, ineligible to office by reason of his default, to render himself eligible for the same office during the same term by a payment of the amount of his delinquency.

The Constitution, art. 2, § 25, provides: "No person who heretofore hath been, or may hereafter be, a collector or holder of public moneys, shall *** hold any other office under the state government, until such person shall have accounted for, and paid into the treasury, all sums for which he may be accountable or liable."

Code, Shannon, § 1069, providing for eligibility to hold office, makes, among others, this exception:

"(4) Those who are defaulters to the treasury at the time of the election, and the election of any such person shall be void."

It was held in Lewis v. Watkins, 3 Lea, 174, 182, that the point of time to test the eligibility of the candidate is the day of the election, under the statute; that the Constitution is differently worded and might admit of less rigid legislation. But, applying this test, did the settled default of Sharp operate to affect and render void what is claimed to have been his after-election by the quarterly court?

The purpose of the constitutional and statutory provisions may be said to be two-fold: To discourage official defaulting to the treasury; and, where that has occurred, to encourage a purging thereof by settlement. Had Sharp settled his delinquency prior to the day of the August election, it seems clear that he would have been eligible. But were there, or could there have been, two distinct elections of Sharp to office during the period of the single term, the last of which elections may not be denounced as void or invalid?

In the case of State ex rel. Childs v. Dart, 57 Minn. 261 59 N.W. 190, it appeared that a county treasurer was removed in a proper proceeding for the misappropriation of public funds. Afterward the board of county commissioners, which had authority to fill the vacancy, elected him to fill out the term. The question arose whether there was power in the board to thus reinvest him with the office. The court said: "The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. They are brought to declare a forfeiture of a civil right, his eligibility, his qualification to hold that office for the rest of that term. The proceeding is not brought for his removal from a day or a week or a month of his term, but for the whole of the remainder of his term. *** Nothing less is involved in the proceeding. Whether the voters at the polls could condone the offense by which he forfeited his office it is not necessary...