State ex rel. Motlow v. Clark

• Decision Date: 02 April 1938
• Citation: 114 S.W.2d 800,173 Tenn. 81
• Parties: STATE ex rel. MOTLOW v. CLARK et al.
• Court: Tennessee Supreme Court

114 S.W.2d 800

173 Tenn. 81

STATE ex rel. MOTLOW v. CLARK et al.

Supreme Court of Tennessee.

April 2, 1938

Appeal from Chancery Court, Moore County; Thos. B. Lytle Chancellor.

Proceeding by the State of Tennessee, on the relation of Lem Motlow, for a writ of mandamus requiring Bill Clark and others, as members of the quarterly county court of Moore County, to adopt a resolution directing the county election commissioners to call an election on the question of legalizing the manufacture of intoxicating liquors in such county. From a decree awarding relator a peremptory writ of mandamus, defendants appeal.

Affirmed and cause remanded.

Walker & Hooker, of Nashville, for appellants.

John M Cate and John C. Sandidge, both of Nashville, for appellee.

DeHAVEN Justice.

Chapter 193, Pub.Acts 1937, heretofore held constitutional by this court in the case of Clark v. State, 172 Tenn. 429, 113 S.W.2d 374, in the first section thereof (the balance of the act being immaterial to the present controversy) provides as follows:

"Be it enacted by the General Assembly of the State of Tennessee, That the Quarterly County Court of any County within the State of Tennessee shall have the right and power; and, it shall be the duty of said county authorities to call an election, at any time, upon the filing and presentation of a petition bearing the genuine signatures of ten per cent, or more, of the qualified voters of such county, based upon the number of votes cast in the last preceding presidential election in said county. Said petition to be addressed to the Quarterly Court of said County, and to contain such language as to request, or call upon the said Quarterly County Court, to call an election of the qualified voters of said county upon the question of permitting and legalizing the manufacture of intoxicating liquors and other intoxicating drinks within the boundaries of said county.

"Upon the adoption of a motion, or resolution, by the Quarterly County Court ordering, or calling, an election, as hereinbefore provided, a copy of said motion, or resolution, shall be made and certified to by the County Court Clerk, and filed immediately with the Chairman of the County Election Commission; and, it shall, then, be the duty of the said County Election Commission, in and for said county, to order and call an election, to be held in said county; the same to be ordered within 30 days after the filing of the certified copy of the motion, or resolution, as above provided."

The relator shows by his bill that the quarterly county court of Moore county has refused to call an election under the act, notwithstanding a proper petition bearing the genuine signatures of 10 per cent., or more, of the qualified voters of such county, based upon the number of votes cast in the last preceding presidential election, had been addressed to the court, and filed, requesting the court to call such an election. The relator prayed that an alternative writ of mandamus issue requiring the defendants, as members of the quarterly county court of Moore county, at the next regular or special meeting of the court, to adopt a resolution, in accordance with said act, directing the county election commissioners to call an election as provided by the act.

By fiat, the chancellor ordered the issuance of the alternative writ of mandamus, as prayed, returnable on the first Monday in March, 1938, to show cause, if any, why the peremptory writ of mandamus should not issue.

Certain of the defendant members of the quarterly county court demurred to the bill. A pro confesso was taken as to the other defendants failing to answer or plead to the bill.

The grounds of demurrer were: (1) That there is no equity on the face of the bill; (2) that chapter 193, Pub. Acts 1937, specifically provides for the exercise by the quarterly county court of its own discretion in determining whether or not to call an election as provided by the act. Grounds 3 and 4 are of like effect as ground 2, above set out. Ground 5 is to the effect that the county election commissioners could not be directed by the court to call an election "over the heads" of the county court. This ground is immaterial in view of the fact that the mandamus was directed by the decree solely to the quarterly county court.

The chancellor overruled the demurrer and, defendants electing to stand on the same as an answer, awarded the relator a peremptory writ of mandamus as prayed in the bill.

Defendants have appealed to this court and assigned errors.

The sole question for decision, under the assignments of error, is whether the quarterly county court, under chapter 193, Pub.Acts 1937, is vested with a discretion with reference to calling an election, even though a proper petition requesting an election has been filed by the requisite number of the qualified voters of the county.

It is the insistence of the relator that the quarterly county court having determined that a proper petition has been filed, there remains nothing more to be done by the court but to perform the ministerial act of calling the election. And having failed to perform that ministerial act, the court may be compelled by peremptory mandamus to act. On the other hand, it is the insistence of defendants that the act clearly leaves the matter of calling an election to the judgment and discretion of the quarterly county court, even though a proper petition requesting an election has been filed, and, this being true, the writ of peremptory mandamus will not lie in the cause.

When the resolution calling an election under the act was presented to the court, at its meeting on January 24, 1938 it appears from the minutes of the court for that date that a petition had been addressed to the court requesting...