"This cause, coming on to be heard this 27th day of May, 1938, on the petition of the State Board of Elections, or a majority thereof, for writs from this Court to supersede writs ofcertiorari and supersedeas issued by the Judge of the Circuit Court of Davidson County to the State Board of Elections to bring up for review the action of the said State Board in removing from office W.L. McKee, Joe Thompson and Ross A. Mathews *Page 293 as members of the Shelby County Board of Election Commissioners, and to supersede the said judgment of that Board in ordering said removal, and it appearing from the allegations of the petition to the said Circuit Court that a prima facie case for review bycertiorari is made out, the said petition to this Court is dismissed, in so far as the order of certiorari by the said Circuit Judge is challenged, or involved; but, it appearing that the judgment of removal of the former Shelby Board of Commissioners had been executed before the filing of said petition for certiorari and supersedeas in the Circuit Court, and that restitution of the said former members to office could not legally be made by the writ of supersedeas, pending review on the merits of the judgment of the State Board of Elections, and that, therefore, the writ of supersedeas could serve no useful effect, it is ordered that the petition in this Court be granted to the extent of superseding the writ of supersedeas issued from and by the said Circuit Court. The cause is remanded to the said Circuit Court for further proceedings in accordance herewith.
"On motion of the petitioners, permission is hereby granted that the transcript of the proceedings before the State Board of Elections in the matter of the removal of W.L. McKee, Joe Thompson and Ross A. Mathews as Commissioners of Election of Shelby County, filed as Exhibit No. 1 to the petition for writs of certiorari and supersedeas in this Court, be withdrawn from the files of this Court, in accordance with the reservation made by the State Board of Elections in filing the same as an exhibit to their petition in this Court, the purpose of such withdrawal being to enable the State Board of Elections to comply with the writ of certiorari issued by the First *Page 294 Circuit Court of Davidson County and file such transcript of the proceedings in that Court.
"The costs in this case will be divided."
So much of said petition as seeks a rehearing of the cause must be dismissed. After careful and painstaking consideration the conclusion was reached and announced that the judgment of the State Board of Elections, vested with jurisdiction by the Legislature, by which the members of the Shelby County Board had been removed, was subject to review in the Circuit Court bycertiorari, according to the allegations of the petition in that Court, but that, pending this review, the action taken by the State Board, before the filing of the petition of the removed members of the Shelby Board, in removing them from office, could not be superseded so as to restore them to office on a preliminary application, pending a trial of the case in the Circuit Court. Petitioners, as we conceive, could not maintain the claim that they continued to be incumbents of offices from which they had been removed by the final judgment of a Court of competent jurisdiction in the matter at issue, however erroneous and invalid this judgment might subsequently, upon review, be found to have been. Until adjudged invalid on appeal, or review, the judgment of the Board stands and the removal remains in effect. An essential predicate of the right to review bycertiorari accorded by this Court is that petitioners forcertiorari had, as distinctly averred, been removed from office by an erroneous or invalid judgment of the inferior tribunal, the State Board of Elections. It was this thing that had been done by the judgment rendered the validity of which was challenged and by this Court ordered to be reviewed. It cannot be consistently maintained that petitioners, having been removed *Page 295 by this judgment complained of, are still incumbents of the offices.
The rendition of the judgment of removal left nothing to be done to accomplish the removal and create a vacancy. It was in this view that this judgment was referred to in our opinion as self-executory, that is, of that class of judgments or decrees which require nothing more than the rendition thereof to put them in effect. No execution or other process needs to be issued, as is necessary in those cases, where, for example, a decree requires a sale to be made, or a possession to be delivered up, or when a jail or death sentence is called for by a judgment. In these amotion cases, ipso facto, upon the passing of the judgment, the removal becomes effective and a vacancy arises. For illustration, in Foster v. State of Kansas ex rel.,112 U.S. 201, 5 S.Ct., 8, 97, 28 L.Ed., 629, where Foster had been removed from his office as a County Attorney and the United States Supreme Court had granted writ of error, Chief Justice WAITE said (page 204): "The judgment operated of itself to remove Foster, and leave his office vacant. It needed no execution to carry it into effect." The petition of McKee and others to the Circuit Court of Davidson County, as an essential element of its prayer for review, alleged that the State Board of Elections had "ordered, adjudged and decreed" the removal of petitioners and filed as Exhibit O to said petition the following copy of said order:
"This matter came on to be heard on this the 18th day of March, 1938, before State Board of Elections, composed of Lee Ware, Chairman, Tom Taylor, Chairman pro tem, J.B. Miller, Secretary, Reed Sharp, Abe Waldauer and Robert Johnson, members, upon the petition, *Page 296 the answer thereto, the oral testimony of witnesses before the Board, and exhibits thereto, when it appears to the Board that from the evidence adduced and from the exhibit to the testimony of witnesses good cause appears for the removal of the respondents, W.L. McKee, Ross Mathews and Joe Thompson, from the offices of Commissioners of Elections of Shelby County, it is therefore:
"Ordered, Adjudged and Decreed by the Board that the respondents, W.L. McKee, Ross Mathews and Joe Thompson, be and the same are hereby removed from office as Commissioners of Elections for Shelby County, and that the offices be and the same are hereby declared vacant."
While petitioners complained of said order or judgment as erroneous and invalid on various grounds, the fact of its making is thus shown, and this judgment of removal must remain in effect, until and unless set aside upon and after a review in the Circuit Court. By its decree herein this Court has (1) affirmed the order of the Circuit Court in granting certiorari to review this judgment and (2) reversed the order of said Court in granting supersedeas, for reasons assigned in our original opinion. This is the scope and effect of the decree of this Court. While it is obvious that vacancies in these offices from which petitioners were removed thus arose, no questions of the qualifications, eligibility or regularity of election of successors were considered, or passed upon by this Court, or were within the scope of the pleadings in this case.
The petition for rehearing insists that this "Court has assumed facts which did not exist. It is assumed that the petitioners were out of office and that their so-called successors were in. This is not true, because at the time *Page 297 the petition was filed before the Circuit Court of Davidson County, the so-called successors to the petitioners had not even qualified." Again it is said, "we do not feel that this Court can adjudicate rights as between petitioners and claimants when the claimants are not even before the Court."
This Court did hold, as a legal consequence of the final judgment of the State Board, that petitioners were out of office, and from this holding it necessarily resulted that vacancies had arisen. But the Court "assumed" and adjudged nothing as to the rights of "successors", who were not "before the court".
Despite the earnest argument of petitioners, this Court is constrained to reaffirm its holding in the original opinion that, in accord with the practice in this State, and generally, when removed by a Court decree office holders will not be reinstated upon a preliminary application, pending a hearing on review. Reference is made to the reasoning and authorities in our original opinion to which we deem it unnecessary to add. Petition dismissed.
DeHAVEN, J., dissents to the opinion on the petition to rehear. *Page 298