State v. Bratton

• Decision Date: 14 July 1923
• Citation: 253 S.W. 705
• Parties: STATE ex rel. CAREY v. BRATTON et al.
• Court: Tennessee Supreme Court

Page 705

253 S.W. 705

STATE ex rel. CAREY v. BRATTON et al.

Supreme Court of Tennessee.

July 14, 1923.

Appeal from Chancery Court, Davidson County; Jno. R. Aust, Chancellor.

Proceedings by the State, on the relation of John C. Carey, against Sam R. Bratton and others to compel recognition of relator as member of the State Board of Elections and to restrain the named defendant from assuming the position. Decree for relator, and respondents appeal. Affirmed to the extent the decree restrained the named respondent from assuming the position, and reversed in so far as it awarded mandamus to compel recognition of relator.

H. N. Leech, of Clarksville, for appellants.

W. E. Norvell, Jr., of Nashville, F. H. Gailor, of Memphis, and Alvin Zeigler, for appellee.

COOK, J.

This is a proceeding to compel recognition of John C. Carey as a member of the state board of elections, and to restrain Sam R. Bratton from assuming the position.

John C. Carey was appointed November 29, 1921, to fill a vacancy caused by the death of Bate Bond. The vacancy was filled by the surviving members of the board exercising power conferred upon them by section 3 of chapter 103 of the Acts of 1909, as follows:

"That the terms of office of the members of the state board of elections first elected as hereinbefore provided shall be for two (2), four (4), and six (6) years, respectively, from the first day of April, 1909. The terms of each member of the first board shall be fixed when he is elected by joint vote of the General Assembly as hereinbefore provided, and thereafter the term of the member elected at each recurring biennial session of the General Assembly shall be for six (6) years from the first Monday of April succeeding his election. All members of said state board of elections shall continue in office until their successors are elected and qualified, and all elections of successors to the first board, or to fill vacancies in that or any subsequent board, shall be bona fide members of the same party to which the member whose successor is to be elected or the member causing the vacancy belonged. All vacancies shall be filled as in the first instance by joint vote of the General Assembly, except vacancies occurring when the General Assembly is not in session, when if the office of only one member is vacant an appointment to fill such vacancy shall be made by the remaining members of the board within thirty (30) days after the vacancy occurs; and, provided, further, that in the event the remaining commissioners fail to fill the appointment within the time mentioned, the same shall be filled by the secretary of state, comptroller, and treasurer, or a majority from the same party in which the vacancy occurred, to hold until the convening of the General Assembly; but if there be more than one vacancy on said board, the same shall be filled by appointment of the secretary of state, comptroller, and treasurer, or a majority of those officers."

It is insisted that petitioner's appointment by the remaining members of the board was for the term of six years. This contention runs counter to the provisions of the act which regulates the terms so as to retire a member biennally. If adopted, it would destroy the uniformity of retirement and succession, and make succession dependent upon the caprice or pleasure of the members of the board who through an easily devised method of resignations and appointments could altogether denude the Legislature of its power of electing members.

The apparent confusion of authority in cases involving tenure and succession in office springs from the varied constitutional and statutory provisions relating to the subject. Each case is controlled by its particular statutory or constitutional provision.

The act creating this board makes specific provision for filling the vacancy from its occurrence until the primary election power, the General Assembly, may meet and elect. The act reserves the power of appointment to the General Assembly, and the authority conferred upon the remaining members of the board and upon their failure to elect, upon the comptroller, treasurer, and secretary of state, is limited to ad interim appointments to vacancies occurring when the General Assembly is not in session, and cannot for the time being exercise the power of appointment. The phrase "to hold until the convening of the General Assembly," under the proviso of section 3 of the act, relates to the action of "the remaining members of the board" as well as to that of the comptroller, treasurer, and secretary of state. It was not intended that appointment by two members of the board should be for a term of six years, and appointments by the comptroller, treasurer, and secretary of state only until the meeting of the General Assembly.

The language of section 3 is plain and free from ambiguity, and controls. The tenure of petitioner, therefore, began when the board elected him, and would end when the General Assembly convened and appointed a successor. State v. Trewhitt, 113 Tenn. 561, 82 S. W. 480; State v. Malone, 131 Tenn. 149, 174 S. W. 257; Baker v. Kirk, 33 Ind. 517; State ex rel. v. Howell, 50 L. R. A. (N. S.) 339 note; State v. Chapin, 110 Ind. 272, 11 N. E. 317; 29 Cyc. 1402.

The General Assembly met the first Monday of January, 1923, and in joint session on the 28th day of February, 1923, elected Sam R. Bratton. It is insisted by petitioner that Mr. Bratton, a member of the General Assembly from Obion county when chosen, was not eligible to membership on the board.

Section 10 of article 2 of the Constitution provides:

"No Senator or Representative shall, during the time for which he was elected, be eligible to any office or place of trust, the appointment to which is vested in the executive or the General Assembly, except to the office of trustee of a literary institution."

Under this provision of the Constitution, Mr. Bratton was not eligible to any office to be filled by the General Assembly. It is insisted by respondent that a position on the state board of elections is not an office within the meaning of article 2, § 10.

An "office" is a public charge or employment, the duties of which are prescribed by law, and he who performs the duties is an officer. Day v. Sharp, 128 Tenn. 346, 161 S. W. 994; 29 Cyc. 1361-1367.

Positions which by article 2, § 10, of the Constitution legislators are forbidden to hold, are such as impose duties prescribed by law, and not by contract. Lewis v. Watkins, 3 Lea, 183; U. S. v. Maurice, Fed. Cas. No. 15,747, 2 Brock. 102.

Every duty required of the state board of elections is regulated and controlled by law, and a position on the board is an office within the meaning of this section of the Constitution, and a member of the General Assembly would not be eligible to the office.

The election of one declared ineligible to office by the Constitution has been uniformly held to be void. Colville v. Neal, 2 Swan, 89; Lewis v. Watkins, 3 Lea, 181; Day v. Sharp, 128 Tenn. 340, 161 S. W. 994; Hogan v. Hamilton County, 132 Tenn. 554, 179 S. W. 128; McLean v. State, 8 Heisk. 22; Pucket v. Bean, 11 Heisk. 600.

And a person constitutionally ineligible cannot become the lawful incumbent of an office, although he might, where there is no obstruction in the way, enter upon the discharge of its duties. Patterson v. Miller, 2 Metc. (Ky.) 493.

Article 2, § 10, not only inhibits the election of one of its members by the General Assembly, but incapacitates the member, if elected in violation of this mandate, to hold such office. Demaree v. Scates, 50 Kan. 275, 32 Pac. 1123,...