State ex rel. v. Shumate
| Decision Date | 12 February 1938 |
| Citation | 113 S.W.2d 381,172 Tenn. 451 |
| Parties | STATE ex rel. v. SHUMATE. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.
Quo warranto by the State, on the relation of James B. Ezzell, to enjoin A. G. Shumate from acting as a member of the House of Representatives of the Tennessee General Assembly and to have him ousted from that office. From a decree overruling a demurrer, defendant appeals.
Decree reversed, and suit dismissed.
Edwin F. Hunt, Chas. L. Cornelius, Thos. H. Malone, J. H. Ballew and Wm. J. Wade, all of Nashville, Dudley Porter, Jr., of Paris, and Robt. L. Forrester, of Watertown, for appellant.
W. O. Hake, of Dickson, J. J. Lynch, of Chattanooga, R. R. Kramer, of Knoxville, Roberts & Roberts, K. T. McConnico, and Jay G. Stephenson, all of Nashville, and Chas. M. Bryan, F. H. Gailor, and William Gerber, all of Memphis, for appellee.
This suit was brought on the relation of James B. Ezzell, a resident of Davidson county, under our quo warranto statutes, Code, § 9336 et seq., to enjoin defendant, Shumate, from acting as a member of the House of Representatives of the Tennessee General Assembly and to have him ousted from that office. A demurrer was interposed by the defendant, which was overruled by the chancellor, and an appeal granted to this court. The chancellor, however, declined to issue the injunction.
The petition averred that Shumate was duly elected a member of the House of Representatives in the November, 1936, election and was inducted into office and entered upon the discharge of his duties when the Legislature thereafter met. It was averred that on July 5, 1937, defendant, Shumate, was elected county judge of Claiborne county by the quarterly county court of that county, gave bond, took the oath of office, and entered upon the discharge of the duties of that office.
The petition further avers that by accepting the oath of office as judge of Claiborne county the defendant thereby vacated his seat in the House of Representatives in the Seventieth General Assembly of the State. Notwithstanding his acceptance of the office of county judge, when the Seventieth General Assembly was called by the Governor into extra session in October, 1937, the defendant undertook to resume the seat in the House of Representatives, to vote on pending measures, and otherwise act as a lawful member of that body. It was alleged in the petition that the General Assembly was about to appropriate large sums of money, that the House of Representatives could only act through its authorized members, that, if defendant were permitted to participate in the proceedings of the House of Representatives and to vote for the appropriation of said sums of money, irreparable injury would be done to the relator and other taxpayers of the State.
Defendant, Shumate, demurred to the petition on the ground that the suit was upon its face a suit to have the court determine the qualifications of the defendant as a member of the House of Representatives, which matter by article 2, § 11, of the Constitution was a matter committed solely to the judgment of the House of Representatives.
Defendant exhibited the journal of the House of Representatives with his demurrer and demurred on the further ground that the journal showed the House had adjudicated and determined the issue sought to be raised by the petition and had decided that defendant was a qualified member of that body.
As heretofore stated the chancellor refused to issue an injunction against defendant from participating in the proceedings of the House of Representatives but the chancellor overruled the demurrer and decreed that the defendant had vacated his seat in the General Assembly by the acceptance of a second lucrative State office. The chancellor permitted an appeal from this ruling, otherwise, acting under the quo warranto statute, Code, § 9351, we take it he would have further decreed that "defendant be excluded from the office or franchise, and that he pay the costs"
The journal of the House of Representatives for October 20, 1937, showed that the right of Mr. Shumate to occupy a seat in that body was challenged for the reason that he had been elected county judge of Claiborne county and had assumed the duties of that office. A motion was made that the seat of Mr. Shumate and of Mr. Vines, the latter also being charged with the acceptance of an incompatible office, be declared vacant. The motion was submitted and the roll called. The journal discloses that the motion was defeated by a vote of 54 to 29, neither Mr. Shumate nor Mr. Vines voting.
The decree below is without support in a decision from any court of last resort on similar facts. Expressions of this and other courts used in other situations are urged upon us, but these words, lifted out of their context, lack authority here.
The Federal Constitution and the Constitution of every State, so far as we are advised, contains a provision to the effect that each House of the Legislature shall be the judge of the election and qualification of its members. Once in this State, and frequently in other States, the courts have been called upon to pass on the election or qualifications of some occupant or claimant of a legislative seat, but the courts have held this to be a matter beyond their jurisdiction.
To use the simple language of the Constitution, we ask how the court can be a judge of the qualification or disqualification of membership in a House of the Legislature, when the Constitution ordains that each House itself shall be the judge of the qualifications of its own members?
The relator urges upon our consideration section 26 of article 2 of the Constitution of Tennessee as follows:
"No Judge of any court of law or equity, Secretary of State, Attorney-General, Register, Clerk of any Court of Record, or person holding any office under the authority of the United States, shall have a seat in the General Assembly, nor shall any person in this State hold more than one lucrative office at the same time: Provided, That no appointment in the militia, or to the office of Justice of the Peace, shall be considered a lucrative office, or operative as a disqualification to a seat in either House of the General Assembly."
To narrow the controversy, we observe that there was no question about the eligibility of Mr. Shumate to a seat in the House of Representatives at the time of his induction into that office. He had not been elected county judge nor does it appear that he then held any other office. It being granted that defendant was lawfully seated in the House of Representatives, the court is now asked to declare that his seat was vacated by his acceptance of the office of county judge. Doubtless we would so hold if the matter were one within our competency. In Calloway v. Sturm, 48 Tenn. 764, 1 Heisk. 764, the court expressed the opinion that Judge Maynard vacated his seat in the federal House of Representatives by the acceptance of an appointment to the bench of this court. In State ex rel. v. Slagle, 115 Tenn. 336, 337, 89 S.W. 326, the court expressed the opinion that a constable vacated his office by accepting an appointment as deputy sheriff. In Wallace v. Grubb, 154 Tenn. 655, 289 S.W. 530, the court expressed the opinion that a member of a school board vacated a seat formerly held by him on that board by the acceptance of an appointment to another seat on the board; that he could not hold two places on the board. In State ex rel. v. Brown, 157 Tenn. 39, 41, 6 S.W.2d 560, 561, the court said that "an incumbent of office who accepts another vacates the first," citing Wallace v. Grubb. This was a passing observation, not a point decided in State ex rel. v. Brown. That was an ouster suit which the court dismissed because it was held the ouster statute had no application to the situation presented in the bill. Caldwell v. Lyon, 168 Tenn. 607, 80 S.W.2d 80, 100 A.L.R. 1152, involved county offices.
In the foregoing cases the court was dealing with the title of the claimant to the second office, a title upon which the court was empowered to pass. In Calloway v. Sturm, the court was careful to note that the continued service in the national House of Representatives, after accepting an appointment to this court, "was a matter entirely for the adjudication of Congress."
In State ex rel. v. Brown, the bill averred that the defendant was undertaking to hold three offices, that of Senator in the General Assembly of the State, election commissioner for Shelby county, and back tax attorney for Shelby county. That is the only case coming before this court that has involved the effect of the acceptance by a member of the Legislature of an incompatible office. As above stated, the case did not call for a decision on this question and the suit was dismissed because the remedy employed did not lie.
In no case, coming before this court, have we ever been asked to review and set aside an adjudication actually made by a House of the Legislature as to the qualifications of one of its members.
We may remark that our Constitution contains no provision, as some Constitutions do, that the acceptance of one office ipso facto vacates an office previously held.
Such is the view of this court, expressed in the cases above cited and such also is the prevailing view. See cases collected in 100 A.L.R. p. 1162. This view, however, is not universal. Some courts of high repute hold that a constitutional or statutory provision against the holding of two offices makes the incumbent of one office ineligible for another office and renders void and of no effect any attempted induction into the second office. Attorney General...
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