76 Tenn. 24 | Tenn. | 1881
delivered the opinion of the court.
The relator Puckett was county judge of Hamilton county from September, 1870, to September, 1878. He was elected, commissioned and qualified as other judges: -Rev. Code, sec. 316c. The office was clothed with all the judicial powers of the county court, and the incumbent was also made the accounting officer and general agent of the county: Id., sub-sec. 8. By the 9th sub-section of the Revised Code, sec. 316 c, it is provided that the county judge shall receive the
It has not been seriously argued that the petition can be maintained so far as it seeks to compel the justices of the county court now to make the additional allowance claimed. The statute gives the quarterly court authority to make additional compensation to the county judge “if they shall think it necessary,” and to such an amount as the court “may deem right.” Terms more strongly indicative of an intent to confer a discretionary power it would be difficult to find. Of course, in all matters requiring the exercise of official judgment, or resting in the sound discretion of those to whom a duty is confided, a mandamus will not lie either to control the exercise of that discretion, or to determine on the decision which shall be given. All the court can do in a proper case is to compel the defendant to proceed, when he refuses to act at all: Williams v. Saunders, 5 Cold., 60. In the case before us, the petition does not show that there is 'pending before the quarterly court any application for the additional allowance upon which they refuse to act, but. concedes, as the proof shows, that the motion to make the allowance was acted on and refused for each- of the two years claimed. The court has exercised its discretionary authority adversely to the relator’s claim.
The petition rests, therefore, upon that part of it which seeks to compel the present county judge to.
The county judge is, no doubt, an inferior judge within the meaning of the Constitution so far as he is clothed with judicial power, and his salary in that capacity is fixed by the act under which he .was elected, and can neither be increased nor diminished during the time for which he is elected: State v. Glenn, 7 Heis., 472. But he is also, by the express terms of the act creating the office, the “accounting officer and general agent of the county,” with onerous ministerial and clerical duties thereto attached. The additional ■compensation, which the quarterly court is authorized to make, is for these services. The amount of that compensation is left entirely to the discretion of the quarterly court, and their judgment, when exercised, cannot be controlled hy any other tribunal.
Affirm the judgment.