State v. Morrison

• Decision Date: 18 July 1925
• Citation: 274 S.W. 551,152 Tenn. 59
• Parties: STATE EX REL. TIDWELL ET AL. v. MORRISON, COUNTY JUDGE.
• Court: Tennessee Supreme Court

274 S.W. 551

152 Tenn. 59

STATE EX REL. TIDWELL ET AL. v. MORRISON, COUNTY JUDGE.

Supreme Court of Tennessee.

July 18, 1925

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

Mandamus by the State, on the relation of one Tidwell and others, to compel John F. Morrison, Sr., County Judge of Lawrence County, to call election for superintendent of schools. From an order sustaining a demurrer to the petition, relators appeal. Remanded, with directions.

Robert B. Williams, of Lawrenceburg, for appellants.

H. D Derrick, of Lawrenceburg, for appellee.

GREEN C.J.

This is a mandamus suit brought on relation of Tidwell and five other citizens and taxpayers against the county judge of Lawrence county to compel that official to call or give notice of an election by the quarterly county court of said county for superintendent of public schools. The petition is obviously based on section 1149 of Thompson's-Shannon's Code requiring the presiding officer of the county court to cause public notice to be given at least three days before the meeting of the court, specifying the office to be filled at that court. A demurrer was interposed by the county judge and sustained by the chancelleor, and the relators have appealed to this court.

The principal question arising in the case is as to the constitutionality of chapter 119 of the Acts of 1921.

Prior to the passage of this act of 1921, by section 1410 of Thompson's-Shannon's Code it was provided that a county superintendent of schools for each county should be elected by the county court biennially in January, to hold office for two years. It appears from the petition herein that a county superintendent for Lawrence county was elected by the quarterly county court of that county at its January term, 1923. No election was had at the January, 1925, term of said court for said office by reason of chapter 119 of the acts of 1921, which act undertook to extend the term of county superintendents from two years to four years.

The caption and section 1 of said act are as follows "A act entitled an act to provide for the election of county superintendents by the county board of education, and to authorize said board to fix their salaries; to provide for a supplement to be paid by the state and the fund from which paid; and to provide certain qualifications for eligibility for the examination for a certificate qualifying for the position of county superintendent.

Section 1. Be it enacted by the General Assembly of the state of Tennessee, that in each county of the state the county superintendent, shall be elected by the county court for a term of four years; provided, that this act shall not change the method of election of county superintendent in those counties where the superintendent is elected by popular vote."

Other sections of the act are not material in the consideration of the case before us.

The contention of the relators that section 1, chapter 119, of the acts of 1921, is unconstitutional must be sustained. The question is scarcely debatable.

In so far as the title of this act refers to the election of county superintendent, it is quite restrictive. It only authorizes such an election by the county board of education. A provision in the body of the act authorizing the county court to elect such official for a term of four years is therefore entirely beyond the scope of the title, and such legislation cannot be sustained under section 17 of article 2 of the Constitution.

Although we resolve every doubt in favor of section 1 of this act, and give this section the benefit of every presumption, still we cannot uphold a power given to the county court in an act the title of which purports to confer such power on the county board of education.

Whether this defect goes to the integrity of the whole act is a question not necessary to be decided. Only section 1 is here involved.

Section 1 of chapter 119 of the acts of 1921 being invalid, section 1410 of Thompson's-Shannon's Code remained in force at the time of the election of the county superintendent of Lawrence county in January, 1923, and his lawful term of office was therefore only two years. His tenure of the office since the January, 1925, term of the quarterly county court of Lawrence county has been as a holdover under section 5 of article 7 of the Constitution to the effect that "every officer shall hold his office until his successor is elected or appointed, and qualified."

This brings us to other questions raised on the appeal.

It is urged by defendant that this suit for mandamus is not maintainable by these relators, but that it is necessary for the District Attorney General to join in such proceedings.

A contrary rule has been stated by this court in the following language:

"Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of vital importance who the relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit." Harris v. State ex rel., 96 Tenn. 496, 34 S.W. 1017.

See, also, Mobile & Ohio R. Co. v. Wisdom, 52 Tenn. (5 Heisk.) 125.

We think that citizens and taxpayers are entitled to bring mandamus to compel an officer charged with a ministerial duty concerning the election of public officials to perform that duty. Such citizens and taxpayers may compel such an officer to perform a ministerial duty preliminary to the holding of an election when he refuses so to do. Note, L. R. A. 1917F, 221.

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