State v. Thompson

• Decision Date: 09 February 1952
• Citation: State v. Thompson, 193 Tenn. 395, 246 S.W.2d 59, 29 Beeler 395 (Tenn. 1952)
• Parties: , 193 Tenn. 395 STATE ex rel. v. THOMPSON.
• Court: Tennessee Supreme Court

Page 59

246 S.W.2d 59

29 Beeler 395, 193 Tenn. 395

STATE ex rel. v. THOMPSON.

Supreme Court of Tennessee.

Feb. 9, 1952.

Dick Jerman, Atty. Gen., Alamo, Hudgins & Hudgins, Union City, for plaintiff in error.

Dudley Porter, Paris, for defendant in error.

TOMLINSON, Justice.

This is a suit in the nature of a quo warranto brought under Code Sections 9336 et seq. in the name of the State of Tennessee by the District Attorney General upon the relation of eleven citizens and residents of the municipality of Paris, Tennessee. The bill charges the defendant, J. J. Thompson, with having forfeited his office as a member of the Board of Commissioners of that municipality, and charges Thompson with unlawfully holding or exercising its office of City Manager. The bill seeks a judgment so holding as to both offices.

The Charter of the municipality of Paris is the Uniform City Manager--Commission Form of Government Charter provided for by Code Sections 3517-3647. Its Board of Commissioners, called a 'council', consists of five members who hold office for a term of four years, two being selected by the people at one election, and the remaining three at an election held two years later. Under its charter this Board selects one of its members as Mayor and one as Vice-Mayor. The Mayor receives a salary of $600 per annum. The salary of the remaining commissioners is $300 a year. This charter requires its Board of Commissioners to 'appoint and fix the salary of the city manager', Code Section 3554. At an election held in December, 1950, Lawrence King, J. Woods Hill and the defendant, J. J. Thompson, were elected commissioners (members of the Council) for a period of four years commencing January 2, 1951.

At the initial meeting of the new board on January 2, 1951, after organizing by electing King Mayor and Thompson Vice-Mayor, there was introduced a resolution reading, in so far as pertinent here, as follows: 'Be it further resolved, That J. J. Thompson be appointed City Manager of the City of Paris, Tennessee, at a yearly salary of $2,500.00. The said J. J. Thompson will be inducted into office on Jan. 2, 1951, will execute a fidelity bond in the amount of $10,000.00, and will serve at the will of the Board of Commissioners.' The J. J. Thompson mentioned in the resolution is one of the three men who had just taken office as commissioners.

King moved the adoption of the resolution and Thompson seconded it. These two commissioners and Hill voted for it. The remaining two commissioners did not support it. One of them voted against it. The other did not vote. Thompson was thereupon declared elected, and immediately assumed office by the execution and filing of the required bond and oath of office. Thereupon, and at the same session, he discharged the Chief of Police and the City Attorney, and appointed two others to fill these offices. He, therefore, immediately assumed the office and the exercise of its powers.

The insistence made by the bill is that (1) he vacated his office as commissioner by accepting the office of City Manager and (2) the council was without authority under the common law to elect one of its own members City Manager; hence, that the election of Thompson as City Manager was void.

The Chancellor held that Thompson vacated his office as a Commissioner by accepting and assuming the office of City Manager, but that his appointment as City Manager was valid. Both sides have appealed. The State's insistence is that the purported election of Thompson as City Manager is void for the reason above stated. Thompson's insistence is (1) that his election as City Manager is valid and (2) that by accepting it, he did not thereby vacate his office as a member of the City Council.

'The rule at common law is that, where one accepts a second office incompatible with one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind'. State ex rel. Little v. Slagle, 115 Tenn. 336, 341, 89 S.W. 326, 327. However, if Thompson's appointment to the second office was void, it follows that his attempted acceptance of that second office was likewise legally ineffective. In this plight of the case the question arises as to whether this common law rule would apply. It is necessary, therefore, to first determine whether the Council had the authority to appoint one of its own members its City Manager.

The Charter of Paris provides that 'the Board of Commissioners shall appoint and fix the salary of the City Manager'. He holds office at the will of this Board except that he cannot be removed for the first twelve months after his appointment other than for incompetency, malfeasance, misfeasance or neglect of duty, and in that case he is entitled to written charges and to a public hearing by the Board. But the decision of the Board after such hearing is final, Code Section 3554. The City Manager is required to attend all meetings of the Board and participate in its discussions, but he has no right to a vote in that body, Code Section 3560(e). He is the administrative head of the municipal government under the direction and supervision of the Board, Code Section 3559. It is his duty 'to recommend to the board of commissioners for adoption such measures as he may deem necessary or expedient', Code Section 3560(f).

Of course, it was not the intention of the Legislature to permit the City Manager to be one of the five members of the Board which determines whether or not he shall be discharged for cause, or without cause after twelve months, or, as a member of the Board, to accept or reject or modify his own recommendation made as City Manager, or, as a member of the Board, to direct and supervise himself as City Manager in the administration of the affairs of the City. This statement of the situation seems conclusive of the fact that the two offices are completely incompatible.

As heretofore stated, the statute (the Charter of Paris) expressly provides that 'the board of commissioners shall appoint and fix the salary of the city manager'. The Legislature, in enacting this statute, knew that each commissioner is a trustee charged with the utmost fidelity to his cestui que trust, the City of Paris, and that each commissioner probably could not with due fidelity mingle his personal interests and affairs with his duties as such trustee, human nature being what it is. Therefore, when this statute provided that the commissioners should fix the salary of the City Manager it did by necessary implication forbid the Board from appointing one of its own members to that office. No other effect can logically be given this provision of the statute.

The immediately above stated necessary implication of the statute (Charter of Paris) is in accord with the common law rule on the subject. The text of 42 American Jurisprudence, page 955, Section 97, in so far as pertinent here, is this: 'So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members.'

The text of McQuillin on Municipal Corporations revised Volume 2, page 159, Section 477, is this:

'Officers who have the appointing power are usually disqualified from appointment to office to which they may appoint. Such exercise of the appointive power is against public policy, and is void on its face, and the one so appointed, it has been said, is not even a de facto officer.----'

'Pursuant to the general rule, a council, although possessing the power of appointment may not select one of its own members as clerk of the council, or as a member of the board of assessors. For a like reason, a member cannot vote to confirm his own appointment to office.'

There are a number of decisions of this court dealing with Board members voting in violation of Code Sections 1874 and 3497 for a contract in which they were personally interested. But those decisions are not applicable to the question with which we are dealing since the rights and obligations of a public office are created by law, not by contract. Cornett v. City of Chattanooga, 165 Tenn. 563, 567, 56 S.W.2d 742. Nor have we been able to find any decision of this court dealing with this question, but we are referred to or find a number of such decisions in other States. Those decisions are fairly uniform in holding that a council or board which has the power and duty of appointment to an office cannot select one of its own members. Some that seem quite in point are Snipes v. City of Winston, 126 N.C. 374, 35 S.E. 610; Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40, 31 L.R.A.,N.S., 575; Gaw v. Ashley, 195 Mass. 173, 80 N.E. 790; Board of Commissioners v. Montgomery, 170 Ga. 361, 153 S.E. 34, 37; Arbogast v. Shields, 123 W.Va. 167, 14 S.E.2d 4.

The controlling principle as stated in the Kentucky case, supra [140 Ky. 353, 131 S.W. 41], is:--'The fact that the power to fix and regulate the duties and compensation of the appointee is lodged in the body of which he is a member is one, but not the only, reason why it is against public policy to permit such a body charged with the performance of public duties to appoint one of its members to an office or place of trust and responsibility.' (Emphasis supplied). The North Carolina case, supra [126 N.C. 374, 35 S.E. 610], in discussing this rule, said that it 'has been found to be the soundest policy, encouraged by the purest principles of Christianity', and that 'common reasoning declares this principle to be sound, and the public is entitled to have it strictly enforced against every public official.' The Georgia case, supra, in holding that the Commissioners of the City were without authority to appoint one of their members to the office of City Manager, noted that the office of commissioner and that of City Manager were incompatible. The West Virginia case, supra [123 W.Va. 167, 14 S.E.2d...