| Tenn. | Dec 15, 1920
delivered the opinion of the Court.
On August 21, 1920, the complainants, C. Runcie Clements, Rufus E. Fort, Edward Buford, Dudley Gale, James A. Yowell, and A. S. Warren, citizens of Davidson and Robertson counties, filed their original bill in the Second Chancery Court of Davidson county, Tenn.. against A. H. Roberts, governor of the State of Tennessee, Ike B. Stevens, secretary of State of Tennessee, A. L. Todd, speaker of the senate of the general assembly of the State of Tennessee, and Seth M. Walker, speaker of the house of the general assembly of the State of Tennessee, to enjoin them and each of them from taking steps to certify the adoption or ratification of the Nineteenth Amendment to the constitution of the United States, known as the “Suffrage Amendment,” by the general assembly of the State of Tennessee, and from
The bill alleged that complainants were citizens and taxpayers of the State of Tennessee, and were duly qualified voters under the constitution and the laws of said State, and the constitution and laws of the United States.
The bill further alleged that the Congress of the United States had submitted to the various States the proposed amendment to the effect that the rights of citizens of the United States to vote shall not be denied or abridged by any State on account of .sex, known as the suffrage amendment to the Constitution of the United States; that article 2, section 32, of‘the constitution of the State of Tennessee, provides as follows: ■
“No convention or general assembly . . . shall act upon any amendment of the Constitution of the United States proposed by Congress to the several States; unless such convention or general assembly shall have been elected after such amendment is submitted.”
That the legislature of Tennessee then in session was elected by the qualified voters of the State in the year 1918, before said suffrage amendment had been proposed by the Congress or submitted to the legislatures of the several States; that notwithstanding the imperative di
The bill further alleged that the general assembly was then in session, pursuant to said call; that the senate had already voted favorably upon said resolution for ratification, and that the house committee had reported favor-bly upon said resolution, which report of the house committee came up for action on August 18, 1920, at which time an effort was made to have the house of representatives adopt the report of said committee and pass said illegal and unconstitutional resolution; that upon a motion to table the same the vote stood forty-eight, votes for and forty-eight votes against the motion, there being ninety-sis members of said house of representatives
It was further alleged by complainants upon information and belief that the said A. H. Roberts, Governor, had actively, worked for the passage of said illegal and unconstitutional resolution, and had evidenced his willingness in every way to aid its passage, which complainants were advised was contrary to his duty, which duty was to uphold and sustain the constitution of the State of Tennessee. And that the said Ike B. Stevens, secretary of State, occupied a like position with regard to said resolution, and was anxious that the same be passed and adopted, although he had not been so open in his efforts to effect its passage, and that should said motion to reconsider said alleged resolution fail to pass the house, an effort
In accordance with the prayer of said bill, a fiat for a preliminary injunction was granted by the Honorable E. F. Langford, one of the circuit judges of Davidson county, Tenn., on the 19th day of August 1920, and the defendants were enjoined from making, signing issuing, or making, any proclamation, declaration, resolution, or certificate declaring that the State of Tennessee had constitutionally and legally adopted the proposed Nineteenth Amendment to the constitution of the United States, and from taking any official action with reference to the illegal action of the special session of the general assembly of the State of
Thereafter, on August 28, 1920 an amended and supplemental bill was filed by the same parties against the same defendants, both . in their official and individual capacities, and also against W. M. Carter, clerk of the senate of said general assembly, and John Green, clerk of the house of said general assembly, both in their official and individual capacities.
In this amended and supplemental bill the allegations in the original bill were set out and reiterated, and in addition certain other allegations were made, among them being that, notwithstanding the defendants to the original bill were specifically enjoined from taking the action therein alleged, the defendants Carter and Green, as clerks of said senate and house, respectively, had been instructed by parties to the complainants unknown to sign, certify, and proclaim the illegal and unconstitutional action of said Senate and House purporting to adopt said resolution, and that unless restrained by injunctive process the defendants Carter and Green would attempt to proclaim said illegal and unconstitutional action in obedience to the orders of some of said defendants, who had theretofore been enjoined under the original bill, and who would not themselves attempt to make any certificate or proclamation because they had been enjoined from so doing,.
The amended and supplemental bill prayed that the defendant Green, as clerk of the house, be enjoined from transmitting, and the defendant Carter, as clerk of the senate, be enjoined from receiving or communicating to
On August 22, 1920, upon the fiat of the Honorable E. F. Langford, circuit judge, an injunction was issued and served upon the defendants Green and Garter in accordance with said prayer.
On August 23, 1920, defendants A. H. Roberts, as governor, and individually; Ike B. Stevens, as secretary of State, and individually; A. L. Todd, as speaker of the senate, and individually; and W. M. Carter, as clerk of the Senate, and individually — presented their petition for writs of certiorari and supersedeas to the Honorable D. L. Lansden, a member and Chief Justice of this' court, which contained many allegations, among them, that the Honorable E. F. Langford, circuit judge, in issuing said fiat and injunction upon the allegations contained in the original and amended and supplemental bills had exceeded the jurisdiction conferred upon him as circuit judge, and had acted illegally, and his action in granting-said injunction against petitioners was therefore void; that petitioners were without a plain, speedy, and adequate remedy, except by petition for the writ of certiorari, and as ancillary thereto, the Avrit of supersedeas to bring said cause into this court for review, and to supersede said
Without setting out in detail the allegations of said petition it may be said that it proceeded upon the theory:
(1) That as to the governor, the courts were without jurisdiction to hamper or interfere with him in the performance of his duties as governor, and that the original and amended and supplemental bills showed that the consideration and adoption of said resolution ratifying the Nineteenth Amendment to the constitution of the United States was legislative in its character, and that he was in the performance of an executive duty with respect to the same, imposed upon him by law, and by the .resolution itself, and that his discretion, in the performance of these duties could not be made the subject of injunctive process.
(2) That the bills disclosed that the said acts to be performed by the legislature and the governor were but steus in the adoption, ratification, and promulgation of said resolution,» and therefore said bills were premature and the court was without jurisdiction.
(3) That as to the secretary of State, there was no jurisdiction either of the person or the subject-matter because,. under the law, the secretary of State had no duty whatever to perform, and could only affix the seal of the State to said resolution, or certificate, when ordered by the governor to do so, and hence his acts, under the law, were the acts of the governor, which could not be restrained by injunction. And further, that all acts to be performed by him were shown to be acts to be done prior to
(4) As to said petitioner Todd and said Speaker Walker, the court was without jurisdiction because they were spearkers respectively, of the house and senate of the general assembly, which was a co-ordinate department with that of the judiciary of the state, and that the acts complained of by them and sought to be enjoined were but steps to be taken in the adoption of said resolution, and for this reason the judiciary could not interfere with them in the performance of their official duties, and was without jurisdiction to do so.
(5) That to said Green and Carter, clerks, respectively, of the senate and of the house, the same rule which applied to the speakers applied to them, and hence the court was without jursdiction to interfere with them in the performance of their official duties.
(6) That as to all of said petitioners the bills disclosed that both they and the legislature were performing the political functions of ratifying or rejecting an amendment to the federal constitution under article 5 thereof, from which alone they derived their power and jurisdiction, and in the discharge of which duty, as agents of the federal government, they were not amenable to any court, or subject to be restrained by injunctive process, but could only be held amenable as political agents or representatives. And further that, even then, their acts in this capacity were only steps in the consummation of said political function which had not been completed, and hence the sidt was premature. And for all of which reasons, there was either a want of jurisdiction over
On August 23, 1920, at 8:57 p. m., the Chief Justice of this court issued his fiat in accordance with,the prayer of the petition, and on August 24, 1920, at 8:55 a. m., said petition was filed in' the office of the clerk of this court at* Nashville, after which said writs of certiorari and supersedeas were issued by the clerk of this court as prayed for in the petition, and were served upon the clerk of the chancery court.
On November 20, 1920, complainants prepared and had served upon counsel for petitioners a notice that they would, at the present term of this court move to have said writs of certiorari and supersedeas quashed, and to. dismiss the petition filed therefor upon the following grounds:
(1) Because said application was made and said writs issued without notice to opposing counsel, and without excuse for failure to give such notice, and in violation of rule 10 of this court (160 S. W. viii).
(2) Because said writs .were issued to supersede a negative injunction.
(3) Because the court had no power or jurisdiction to issue said writs.
(4) Because, in so far as said petition seeks to have a bearing on the merits of the original and amended and supplemental bills, no pleading has been filed by defendants, and no decree made by the chancellor, and this court is without jurisdiction to hear and determine the cause upon the merits; the jurisdiction of this court being appellate only.
(6) Because the petition fails to show that petitioners are entitled to any of the relief prayed for in their petition.
Petitioners have moved the court to quash said proceedings and dismiss said original and amended bills for the reasons set forth in their petiton for writs of certio-rari and supersedeas, which motion was preceded by seasonable notice to complainants.
By section 4853 of Shannon’s Annotated Code it is provided:
“The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.”
In Railroad v. Campbell, 109 Tenn., 645, 75 S. W., 1012, it was said:
“The writ of certiorari does not owe its existence to constitutional provision or statutory enactment. It is a common-law writ, of ancient origin, and one of the most valuable and efficient remedies which come to us with that admirable system of jurisprudence.
“This court, the highest tribunal in the State, with appellate and supervisory jurisdiction over proceedings and judgments of all inferior courts, has the inherent power to grant it whenever necessary in the exercise and enforcement of this jurisdiction. It is not restricted from its use by section 10 of article 6 of the constitution, providing that the judges of inferior courts of láw and*142 equity shall have power to issue it in civil cases to remove them from any inferior jurisdiction into a court of law. This provision was only intended as a guaranty of the continuance of a power with which these judges were already vested.”
The court in that case further said: “It is fully authorized by the general provisions contained in the Code for the correction of errors in the judgments of inferior courts, which include certiorari as one of the means by which this may be done; and it is there provided that it may be granted whenever authorized by law, and in all cases where an inferior tribunal exercising judicial functions has exceeded its jurisdicton or is acting illegally, when, in the judgment of the court, there is no other plain, speedy or adequate remedy and that it will lie on a suggestion of diminution, where no appeal is given, as a substitute for an appeal, and instead of a writ of error.”
To the same effect is the holding of this court in State v. Hebert, 127 Tenn., 241, 154 S. W., 957, and in Conners v. City of Knoxville, 136 Tenn., 432, 189 S. W., 870.
In State ex rel. v. Alexander, 132 Tenn., 447, 178 S. W., 1107, this court, under a proceeding identical with that taken by petitioners, that is, certiorari, and as ancillary thereto, a supersedeas, reviewed the action of the circuit court of Davidson county, Tenn., granting an injunction enjoining J. D. Alexander, commissioner of fire and building inspection of the city of Nashville, from exercising, or attempting to exercise, his rights, powers and functions, pertaining to his office as said commissioner, and held the injunction and the fiat, authorizing its issuance, void and of no effect.
“No supersedeas shall issne npon application in for, ma- pauperis, without express order of the judge dispensing with security. Such order may be made by the judge only on notice to the adverse party of the application.”
It has been held by this court that this statute is merely directory and not imperative, and such notice is waived by the voluntary appearance of the adverse party. Legate v. Ward, 5 Cod., 451; Combs v. Vogeli, 7 Baxt., 272; Mowry v. Davenport, 6 Lea. 84.
In Combs v. Vogeli, supra, this court held that a fiat for a supersedeas, issued upon the pauper’s oath, without notice, is not void; but that the petition is subject to be dismissed for the error in the issuance of the super-sedeas without notice.
We do not think rule 10 of this court relating to writs of error and supersedeas, or to writs of certiorari and supersedeas to revise, reverse, and supersede judgments of the trial court, applies to interlocutory orders or decrees rendered by inferior courts not having jurisdiction to render them, or where such interlocutory orders or decrees are in excess of the jurisdiction of such courts, or where such courts acted illegally. It only applies to final decrees or judgments, both in relation to certiorari and supersedeas and writs or error and su-persedeas.
We think the record discloses grounds for both the common-law and statutory writs of certiorari. There
We are of the opinion that there is nothing in the case' of Howell v. Thompson, 130 Tenn., 313, 170 S. W., 253, which is relied upon by counsel for complainants, that effects petitioners’ right to writs of 'certiorari and su-persedeas under the facts disclosed by the record in the instant cause. In that case a supersedeas alone was applied for under sections 5737, 5738, and 6348 of Shannon’s Annotated Code. In that case a supersedeas alone was sought as a primary method of reviewing the action of the lower court in granting an injunction against the attorney general of the State, while the supersedeas in the instant cause was only ancillary to the writ of cer-tiorari. The writ of certiorari operated to bring the cause from- the lower court into this court for review, and for such action by this court as the facts and law warranted.
We think, therefore, that the petitioners pursued the proper remedy, and the only remedy open to them to stay the proceeding of the lower court, which the petition expressly alleged, was illegal and void.
We will now proceed to dispose of the question of the alleged illegality of the action of the lower court in granting the injunctions against petitioners. After a careful examination of the authorities, we are of the
In Turnpike v. Brown, 8 Baxt., 490, 35 Am. Rep., 713, it was expressly held that the courts of this State have no jurisdiction, by mandamus, to compel the governor to perform any duty devolved upon him as such officer by the constitution and laws of the State. In that case the court said:
“As to purely executive or political functions devolving upon the chief executive officer of a State, or as to duties necessarily involving the exercise of official judgment and discretion, we think it may be safely assumed that mandamus will not lie. This necessarily results from the nature of -a government having three independent departments — executive, legislative, and judicial. Such is the doctrine well settled by authority.”
In that case the court quoted with approval from High on Extraordinary Remedies as follows:
“As to duties of a ministerial nature, and involving no element of discretion, which have been imposed by law upon the governor of a State, the authorities are exceedingly conflicting, and, indeed, utterly irreconcilable. Upon the one hand it is contended, and with much show of reason, that as to duties of this character the general principle allowing relief by mandamus against ministerial officers should apply, and the mere fact of ministerial duties having' been required of an executive officer should not deter the courts from the exercise of their jurisdiction. Upon the other hand it is held that under our structure of government, with its three dis*146 tinct departments — executive, legislative, and judicial— each department being entirely independent of the other, neither branch can properly interfere with the duties of the other, and as to the nature of the duties required of the executive department by law, and as- to its obligations to perform these duties, it is entirely independent of any control by the judiciary. While the former theory has the support of many respectable authorities, and is certainly in harmony with the general principles underlying the jurisdiction as applied to purely ministerial officers, the latter has the clear weight of authority in its favor, and may be regarded as the established doctrine upon this subject.”
To the same effect is the holding of this court in Bates v. Taylor, 87 Tenn., 326, 11 S. W., 266, 3 L.R.A. 316" court="Tenn." date_filed="1889-02-16" href="https://app.midpage.ai/document/bates-v-taylor-8298239?utm_source=webapp" opinion_id="8298239">3 L. R. A., 316. That was a proceeding brought to mandamus the governor, and to require him to deliver a certificate already prepared, signed, the seal of the State affixed, and countersigned by the secretary of State, which was in his possession, to a candidate for a member of the Congress, to enjoin him from preparing and issuing another certificate to the opposing candidate. This court, after citing the case of Turnpike v. Brown, supra, said:
“We have no hesitation in holding that the courts have no 'jurisdiction to compel the governor to deliver to complainant the certificate claimed by him. No more have they the power to restrain him from issuing a certificate to the other applicant. If the governor cannot be compelled by mandamus to deliver a certificate of election to one person, it follows that he cannot be restrained by injunction from delivering it to another per*147 son, for the nature of the act to he performed -by him is precisely the same in one case as in the other, and the same considerations operate to defeat the jurisdiction of the courts in both instances.”
Again, in State ex rel. v. Board of Inspectors, 114 Tenn., 516" court="Tenn." date_filed="1904-12-15" href="https://app.midpage.ai/document/state-ex-rel-latture-v-board-of-inspectors-8300280?utm_source=webapp" opinion_id="8300280">114 Tenn., 516, 86 S. W., 319, which was also a mandamus proceeding against the governor, secretary of State, and attorney general, constituting the board of inspectors of elections, to compel them to compare the vote for joint representative in Hawkins and Sullivan counties in an election which had been held, and to declare the person receiving the highest number of votes duly elected, this court said:
“ The governor of the State constitutes one of the coordinate departments of the government, and he cannot be compelled by mandamus to perform any act which devolves upon him as governor.”
In that case the court further said with reference to the governor:
“He is not subject to the mandate of any court. No court can coerce him. No court can imprison him for failing to perform any act, or to obey any mandate of any court. This holding is in accord with that of other courts in other States, though the contrary is held in some cases in regard to ministerial acts.”
In Mississippi v. Johnson, 71 U.S., 475" court="SCOTUS" date_filed="1867-04-15" href="https://app.midpage.ai/document/mississippi-v-johnson-87790?utm_source=webapp" opinion_id="87790">71 U. S., 475, 18 L. Ed., 441, an effort was made to enjoin President Johnson from enforcing the reconstruction acts. The supreme court of the United States, in passing upon the power of the courts to interfere with the duty of the President to enforce said acts, speaking through Chief Justice Chase, said:
*148 Pit will hardly be contended that Congress can inter- ■ pose in any case to restrain the enactment of an unconstitutional law, and yet, how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished in principle from the right to such interposition against the execution of such a law by the President? The Congress is the legisative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon the consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand,' the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the house of representatives impeach the President for such refusal? And in that case, could this court interfere in behalf of the President thus endangered by compliance with its mandate and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this court to arrest proceedings in that court? These questions answer themselves.”
As to the secretary of state, the petition discloses that under the constitution and statute of this State, as well as under the resolution itself, he had absolutely no duty to perform. He is not the custodian of the seal of the State; he can only affix the seal when directed to do so by the governor. The governor had the risht, in making the certificate to said resolution, to affix the seal himself, which he, in fact, did do. If the secretary of State had affixed the seal to the certificate'of the governor, and had signed it, his only authority for doing so would have been the
What has been said with respect of the acts of the governor applies with equal force to Todd and Walker, as speakers of the senate and house, respectively; and to Carter and Green, as clerks of the senate and house, respectively. The bills show that their duties with respect of said resolution were duties to be performed by them as members of the legislative department of the government. The State constitution divides the powers of the government into three independent co-ordinate departments, viz., legislative, executive, and judicial, with express prohibition against any encroachment by one department upon the powers and prerogatives of either of the others, except in particulars authorized by the constitution.
In Richardson v. Young, 122 Tenn., 471" court="Tenn." date_filed="1909-12-15" href="https://app.midpage.ai/document/richardson-v-young-8300668?utm_source=webapp" opinion_id="8300668">122 Tenn., 471, 125 S. W., 664, this court, in defining “legislative,” “executive,” and “judicial” powers, said:
“The constitution does not define in express terms what are legislative, executive, or judicial powers.
“Theoretically the legislative power is the authority to make, order, and repeal; the executive, that to administer and enforce; and the judicial, that to interpret and apply, laws.”
We think the acts which complainants, in their bills, sought to enjoin the two speakers from performing, fell strictly within their powers as members and officers of the legislature, and could not be interfered with by the courts. We think the same is true of the acts which it was sought to enjoin the respective clerks from performing. They were simply obeying the mandate of the two houses
It results that.the motion of complainants to quash the writs of certiorari and supersedeas and dismiss the petition, upon which said writs, were issued, is denied; and the court being of the opinion that the court below was without jurisdiction and acted illegally in granting the injunctions upon the allegations contained in complainants’ bills, the petition for writs of certiorari and super-sedeas is sustained, and the proceeding of the lower court will be quashed and said bills will be dismissed.
Complainants are taxed with costs accruing both in this court and in the court below.