Hogan v. Hamilton County

• Decision Date: 29 September 1915
• Citation: 179 S.W. 128
• Parties: HOGAN v. HAMILTON COUNTY et al.
• Court: Tennessee Supreme Court

179 S.W. 128

HOGAN v. HAMILTON COUNTY et al.

Supreme Court of Tennessee.

September 29, 1915.

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Bill by John H. Hogan against Hamilton County and others. Decree for complainant, and the defendants appeal. Affirmed.

S. H. Ford, Lewis Shepherd, and Allison, Lynch & Phillips, all of Chattanooga, for appellants. J. H. Early and W. B. Swaney, both of Chattanooga, for appellee.

NEIL, C. J.

Complainant was clerk and member of the board of public road commissioners of Hamilton county, with a term beginning the first Monday in September, 1912, and running to the first Monday of September, 1914, and until his successor should be elected and qualified. At the August election, 1914, one Joe N. McCutcheon received the highest number of votes, obtained a certificate of election, presented himself to the county court, and was permitted to take the oath and execute bond for the office. He thereupon demanded the possession of the books, papers, etc., from Hogan. The latter refused to surrender the office, or the books and papers. McCutcheon, after coming to the office a few days, desisted; an injunction having been sued out against him by Hogan. Hogan's refusal to surrender the office was based on the fact that McCutcheon had been clerk of the county court and had defaulted in the payment of state revenue, and still remained a defaulter on the day he was elected clerk. Hogan held the office until it was abolished by the Legislature of 1915. During this time a salary of $1,050 accrued, but the county refused to pay it. When two months had elapsed Hogan sued for the amount then due, but subsequently filed an amended bill in which he claimed for the whole time. The question is whether the county can be compelled to pay this salary. In our judgment this question should be decided in the affirmative.

It is fully proven, and not denied, that McCutcheon was a defaulter as previously stated. In view of this fact, his election was absolutely void under the Constitution, art. 2, § 25, and under Sh. Code, § 1069. The fact that he was, by the county court, permitted to take the oath and give bond, added nothing to his position. He simply became a de facto officer, and could assert no rights. Newman v. Justices of Jefferson County, 6 Humph. 41; Pearce v. Hawkins, 2 Swan. 88, 57 Am. Dec. 54. Hogan, being the de jure officer by virtue of his right to hold over under the Constitution, was entitled to serve in...