Lawrence v. Ingersoll

• Decision Date: 19 October 1889
• Parties: LAWRENCE v. INGERSOLL et al.
• Court: Tennessee Supreme Court

12 S.W. 422

88 Tenn. 52

LAWRENCE v. INGERSOLL et al.

Supreme Court of Tennessee.

October 19, 1889

Appeal from chancery court of Knoxville; H. R. GIBSON, Chancellor.

Taylor & Hood, for complainant. J. W. Caldwell and Ingersoll & Peyton, for defendants.

SNODGRASS J.

The bill in this cause was filed by J. C. Lawrence, claiming to be a duly-elected and qualified member of the board of education of the city of Knoxville, for an injunction against defendants and the other four members of said board, to prohibit the meeting and action of said board without him and to compel defendants, by mandamus, to recognize him as a member of the board, and permit him to take part in its proceedings, upon allegations of refusal of defendants so to do. The injunction issued, and, on final hearing mandamus was awarded as prayed for. Respondents appealed, and assigned errors. Two preliminary questions are made, which need to be briefly noticed before disposition of the real merits of the controversy. One of these is made by respondents, and is an objection to the power of the court to issue a mandatory injunction, upon the assumption that the one issued in this case is such. The other question is made by complainant, and goes to the right of the court to inquire into the legality and validity of his election in this proceeding. Respecting the first question, it is sufficient to say that the injunction is not mandatory. The injunction prohibited the meeting and action of defendants without giving complainant notice, and permitting him to act with them. It did not command his admission, except that if respondents proceeded to act, it prohibited their acting, but authorized them to avoid this prohibition on compliance with conditions which they could or could not accept, as they saw proper, and was clearly not mandatory. It therefore becomes irrelevant and unimportant to discuss the question of the right, to issue mandatory injunctions, and the extent to which they may go.

As to the second question stated, it is equally clear that the chancellor had the right to determine the legality and validity of the election under which complainant claimed title to the office, for the exercise of the powers of which he sought the aid of the court. His election depended alone upon the action of the board of mayor and aldermen as embodied in the record made of it by them. The notification called a "certificate," issued to him by the recorder, is of no force or validity, because not required by law. But, if it were, it could only embody the result of the record of the election, and could not add to its efficacy in the least, or change its effect. All the provisions made in the charter of Knoxville representing this election, pertinent to the point now being considered, are that it shall be made by the mayor and aldermen, by ballot. No other official is in terms directed to declare it, or to certify it, nor is any provision made for a contest. In such case it is well settled that the legality and validity of such election may be inquired into, in any proceeding, by mandamus, to compel other persons to recognize the claimant's title to the office, or when he seeks to enter into it, or otherwise assert his right to act as duly elected. 6 Amer. & Eng. Cyclop. Law, 384, 385, and cases cited; Marshall v. Kerns, 2 Swan, 67, 68; Pucket v. Bean, 11 Heisk. 600; Lewis v. Watkins, 3 Lea, 181, 182.

These questions out of the way, we come to the real question in the case: Was the complainant elected, and is he therefore entitled to compel the defendants to admit and recognize him as a member of the board? To determine this it is necessary to examine his claim to election, and then ascertain if, under the law, it is well founded. To support the first, he shows the following record of the minutes of the proceedings of the board of mayor and aldermen, in addition to the notification or certificate of the recorder, before referred to,--an indorsement, thereon of the recorder that complainant had taken the oath required by law:

"At a call meeting of the board of mayor and aldermen of the city of Knoxville, held Friday, Jan. 27, A. D. 1888, there were present, and answering roll-call, Aldermen Selby, Barry, Hockenjos, Jones, Albers, House, Perry, and McDaniel. Mayor Luttrell called Mayor-Elect Condon and Ex-Mayor Fulcher and Alderman S. B. Boyd to take seats on mayor's stand. (The following proceedings were had, to-wit:) The minutes of the meeting of the board of January 6, Jan. 25 and Jan. 26 were read and approved. On motion of Alderman Albers the board took a recess of five minutes. Mayor Luttrell resumed the chair, and called the board to order. Alderman Perry moved to go into an election of the city school board, to fill out the unexpired term of Hon. M. J. Condon resigned. Motion carried. Mayor Luttrell appointed Aldermen McDaniel and Barry as tellers, and Alderman Perry to take up the votes. Alderman Perry nominated F. L. Fisher. Alderman Jones nominated Rev. J. C. Lawrence. The ballot was taken, and it was found that J. C. Lawrence had received four votes, and F. L. Fisher three votes, and a blank without any name was also found, and thrown out. Mayor Luttrell declared J. C. Lawrence legally elected as a member of the city school board of education, to fill out, the unexpired term of Hon. M. J. Condon, resigned. Some discussion was had, after which Alderman Perry moved to reconsider said vote and election. Seconded by Alderman Albers. The ayes and noes were taken on roll-call, Aldermen Selby, Hockenjos, Albers and Perry voting aye, and Aldermen Barry, Jones, House, and McDaniel voting no,-- 4. Mayor Luttrell decided the motion lost. On motion of Alderman Barry, the board adjourned until nine o'clock to-morrow morning. [Signed] Approved: JAS. C. LUTTRELL , Mayor."

"City of Knoxville, Tenn., Jan. 31, A. D. 1888. Mr. J. C. Lawrence: At the regular meeting of the board of mayor and aldermen of the city of Knoxville, held Jan. 27, A. D. 1888, you were chosen and elected as a member of the board of education, to fill out the unexpired term of said office of Martin J. Condon, resigned. By order of the board. C. C. NELSON, Recorder. Enrolled, 1-12-89, Bk. 2, p. 45."

"J. C. Lawrence came before me and took oath of office as required by the new charter, Jan. 31, 1888. C. C. NELSON, Recorder."

Upon this record and these statements of the recorder he bases his claim to the office, and right to a peremptory mandamus. No question is made that the oath said to have been taken is not shown to have been done by this indorsement, nor upon the notification or certificate as such. The question is only made, as to the latter, that the recorder had nothing to do with the election, or certifying it, and that the certificate does not affect the question; and this is true. This brings us to the second subdivision of the real question, that is, to determine whether, under the law he was in fact elected. The provisions of the charter in relation to the election are found in several sections of the act of June 10, 1885, entitled "An act to reduce the incorporating the city of Knoxville, and the various amendments thereto, to one act, and to amend the same." Section 63 of this act provides that there shall be a board of education for the city, to consist of five members,--citizens of the town, and not members of the board of mayor and aldermen. "Sec. 64: The board of education shall be elected by the board of mayor and aldermen, from the citizens and qualified voters of the town by ballot; and the term of office of each member shall be five years." "Sec. 3. * * * The board of mayor and aldermen shall be composed of nine aldermen." "Sec. 4. * * * The mayor shall not vote, except in case there shall be a tie vote, on any question, and then he shall by his vote decide the question. Sec. 5. * * * It shall require a majority of the members of the board to form a quorum for the transaction of business." No provision being made for the filling of vacancies in the board of education, this defect was remedied by an ordinance as follows: "In case any vacancy shall occur in the board of education, the unexpired term of such member vacating shall be filled by an election by the board of mayor and aldermen, as soon as practicable after such vacancy occurs."

These are all the provisions of the charter or ordinances of the city necessary to be noticed. They are those under which the election was held, and the provisions of which must determine its validity; no other law existing in our statute which affects the question. It is observed that there are nine aldermen, who, with the mayor, are to make the election, if all are present,-- the mayor having no vote,--as no tie could result; that if less than nine are present, but a majority of that number, then those present may elect; but, if equally divided in an election, the mayor may cast the deciding vote,--the only contingency in which his act can affect the question. In the election now being considered a majority (eight) were present, and participating in the election. This appears both in the recitals of the records herein before shown and in the fact that seven ballots were cast for the candidates, and one blank ballot. It remains now to inquire what is the effect of this action on the part of this board, acting through its eight members and authorized quorum? In determining this question, it must be borne in mind that we are not examining the effect of an election of an indefinite number of electors, as the vote of the body of the people of the city, or the vote of any indefinite number of people, in a popular election; for the rule governing the one is entirely different from that governing the other. In the case of general or special...