114 Tenn. 516 | Tenn. | 1904
delivered the opinion of the Court.
This is a hill for mandamus to compel the governor, secretary of state, and attorney-general, constituting the board of inspectors of elections, to- compare the vote for joint representative in Hawkins and Sullivan counties in the last election, and to declare the person receiving the highest number of votes duly elected.
The defendants to the bill appeared by the attorney-general of the state, and demurred to- it, and also moved to quash the alternative writ of mandamus, because the chancery court was without jurisdiction to grant the relief sought, and had no power to coerce said officials, or either of them, ip the performance of the duties imposed by law upon them.-.
An answer was thereupon filed, which was demurred to by the relator, because (1) it did not set out any real reason why the board of inspectors should not compare the vote and declare the result, and (2) because the papers which were exhibited with and made a part of the answer were not election returns, and could not be considered by the board for any purpose.
The chancellor sustained the demurrer, and decreed that a peremptory writ of mandamus issue, requiring the defendants, as a board of inspectors, to compare the vote, and declare the result of the election.
The defendants prayed and were granted an appeal, and have assigned errors.
Before the case was reached for trial in this court, the relator was, by the house of representatives, declared elected joint representative for the counties of Hawkins and Sullivan, and was inducted into office, and has taken his seat as such joint representative.
Further proceedings in the mandamus case are therefore wholly unnecessary and improper, so far as the merits of the controversy are concerned; and it only remains to dispose of the costs which have accrued in the proceeding.
We are of opinion that neither the chancery court nor this court has any jurisdiction or power to grant the mandamus prayed for against the defendants in this case.
Tbe legislature may appoint or. name bim to act upon any board created by it, but it is optional with bim whether be will serve or not. .
If be does serve, bis action is entirely optional; and be cannot be coerced by tbe courts.
In acting upon such board be does not denude himself of bis high and independent position as chief executive of tbe State and tbe bead of that department.
And this is true whether tbe act to be performed is ministerial, executive, or political. Turnpike Company v. Brown, 8 Baxt., 490, 85 Am. Rep., 713; Bates v. Taylor, 87 Tenn., 319, 11 S. W., 266, 3 L. R. A., 316.
He is not subject to the mandate of any court.
No court can coerce bim. No court can imprison bim for failing to perform any act, or to obey any mandate of any court.
This bolding is in accord with that of other courts in other States, though tbe contrary is held in some cases in regard to ministerial acts. 6 Am. & Eng. Ency. Law, 1015, 1016; Hovey v. State, 127 Ind., 588, 27 N. E., 175, 11 L. R. A., 763, 22 Am. St. Rep., 663; People, ex rel., v. Governor, 29 Mich., 320, 18 Am. Rep., 89; Hawkins v. Governor, 1 Ark., 570, 33 Am. Dec., 346; In re Dennett, 32 Me., 508, 54 Am. Dec., 602; State v. Warmouth, 22 La. Ann., 1, 2 Am. Rep., 712; State v. Warmouth, 24 La.
Whether the secretary of the state and attorney-general may be compelled by mandamus to do any official act imposed by the legislature as members of a board, we need not decide.
Under this act they could only sit and perform their duties as a board in conjunction with the goyernor. They cannot act without the goyernor. The law creating the board makes no provision that a majority may act, and in the absence of such provision no action can be taken, except by the entire board participating in it. Carroll v. Alsup, 107 Tenn., 257, 271, 273, 64 S. W., 193.
Without going further into matters set up, we are of opinion that the defendants could not be coerced or compelled in this action to doi what was demanded of them.
This being so, the petitioner’s bill is dismissed; and he is taxed with all the costs of the cause.