The provision found in section 26, article 2, of the Constitution of Tennessee prohibiting "any person" in this State from holding more than one lucrative office at the same time applies equally to persons holding the office of member of the General Assembly as to all other persons of the State. The provision in question contains no exemption in favor of a member of the General *Page 464 Assembly, and none can be read into it. This court has uniformly held that the acceptance of a second lucrative office vacates the first. The first holding to this effect was prior to the adoption of the Constitution of 1870. The same provision was contained in the Constitution of 1834, article 2, section 26 and in that of 1796, article 1, section 23. The framers of the Constitution of 1870, with full knowledge of the construction by this court of the provision contained in the Constitution of 1834 prohibiting the holding of more than one lucrative office by the same person at the same time, brought forward the provision into the new Constitution (article 2, section 26), and, having done so, the prior interpretation and judicial construction will be regarded as having the sanction of constitutional recognition. Jenkins v. Ewin, 55 Tenn. (8 Heisk.), 456, 475; Wiltse Pratt v.State, 55 Tenn. (8 Heisk.), 544, 547.
The history of this provision in Tennessee demonstrates that in its origin it had application alone to members of the General Assembly. Chapter 23, Acts of North Carolina for the year 1784, provided in section 2 thereof:
"Be it therefore enacted by the General Assembly of NorthCarolina, and it is hereby enacted by the authority of the same, That from and after the present session of the General Assembly, every person holding a public office of profit, either by stated salary or commissions, shall be and they are hereby declared to be incapable of being elected as members to serve in the General Assembly, or to enjoy seats therein; and any member of theGeneral Assembly who shall accept any such office shall therebyvacate his seat, any law, usage or custom to the contrarynotwithstanding." (Italics ours.) *Page 465
The North Carolina act of 1784 was in force in Tennessee at the time of the adoption of the Constitution of 1796, and the framers of the Constitution of 1796 undoubtedly had that act in mind when they wrote into the Constitution article 1, section 23, which is the same as article 2, section 26, of the Constitution of 1870, except that to the clause providing that "no appointment in the militia, or to the office of Justice of the Peace, shall be considered a lucrative office" was added "or operative as a disqualification to a seat in either house of the general assembly."
In view of the history of the provision found in article 2, section 26, prohibiting "any person" in this State from holding more than one lucrative office at the same time, and from the plain meaning of the language employed, there can be no basis for a contention that the prohibition has no application to members of the General Assembly. The exact contrary is true. The intention was to extend the prohibition contained in the North Carolina act, applicable alone to members of the General Assembly, so as to prevent any person from holding more than one lucrative office. Without this constitutional barrier, the General Assembly could easily become an organization of officeholders.
In 1920 the then Governor of this State was confronted with the question of calling an extra session of the General Assembly. There were a number of vacancies in the membership. The question also arose as to whether or not there were additional vacancies because of the fact that members had accepted other offices. The Governor sought the advice of the Attorney-General of the State, who rendered an opinion in which, after *Page 466 stating the rule laid down in Calloway v. Sturm, 48 Tenn. (1 Heisk.), 764, and other like cases, he said:
"It is my understanding of the foregoing rule that it is not necessary where one has accepted a second office to have any judicial decision of the vacancy of the first office before it can be filled. The vacancy exists by virtue of the act of acceptance of the second office.
"So in every instance where a member of the legislature has accepted an office, either State or Federal, with a fixed tenure and salary, the fact of the acceptance of the same, vacates his seat in the legislature, under the rule in Tennessee."
The rule of constitutional incompatibility in office has been applied to members of the General Assembly in other states.People v. Haas, 145 Ill. App. 283; State ex rel. v. Masonet al., 61 Ohio St. 513, 56 N.E. 468; State ex rel. McMillan v. Sadler, 25 Nev. 131, 132, 58 P. 284, 294, 59 P. 546,63 P. 128, 83 Am. St. Rep., 573, at page 584.
In Rainey v. Taylor, 166 Ga. 476, 143 S.E. 383, relied upon by defendant, Taylor while holding the office of superintendent of schools was elected a member of the Legislature, and his right to the seat was challenged in the suit. The court held that this was a question to be determined by the House to which he was elected. Under the rule in Tennessee, Taylor's right to the seat could not have arisen because the acceptance of the legislative office would have vacated the office of superintendent of schools.
In State ex rel. v. Grace, 113 Tenn. 9, 82 S.W. 485, 487, the court, after referring to Calloway v. Sturm, 48 Tenn. (1 Heisk.), 764, and cases there cited, said:
"Whatever may be the holding of courts of other jurisdictions *Page 467 upon this question, the rule in this state is as was enforced and followed in these cases, and we are entirely satisfied with its soundness and wisdom."
The rule, however, that the acceptance of a second lucrative office vacates the first is recognized and followed in many other jurisdictions. 46 C.J., 947; 22 R.C.L., 412; Annotation, 100 A.L.R., 1152; Cooley on Constitutional Limitations, 1352;Meagher v. Howell, 171 Ky. 238, 188 S.W. 373; In reAdvisory Opinion, 76 Fla. 418, 79 So. 874.
Defendant insists, however, "that the House is not required to place upon article 2, section 26, that construction which this court has placed upon it." The argument is, in substance, that the House, in passing upon the question of defendant's right to sit as a member, "is not obligated to adopt the principle of construction that the acceptance of the second office vacated the first."
It is clear that the General Assembly cannot rightfully exercise a judicial power. Jones' Heirs v. Perry, 18 Tenn. (10 Yerg.), 59, 30 Am. Dec., 430; White's Creek Turnpike Co. v.Davidson County, 3 Tenn. Ch., 396; 12 C.J., 813. In 6 Ruling Case Law 160, it is stated:
"The legislature does not inherently possess any judicial power, or any mixed jurisdiction partly legislative and partly judicial. The doctrine as to the separation of the powers of the government into three distinct departments is considered sufficient to prevent the legislature from exercising any judicial function whatsoever, except such as may in terms be allowed to it by the constitution itself."
Under no provision in our Constitution can it be held that the House was possessed of the judicial power to *Page 468 construe section 26, article 2 thereof. The claim is, however, that as "judges of the qualifications and elections of its members," under section 11, article 2, the House could construe section 26, article 2. Where a member's right to sit is challenged, as here, on the ground that he had vacated his seat by accepting another office, the House has the jurisdiction to determine the fact of whether or not the member has accepted a second lucrative office; but if it finds that a second lucrative office has, in fact, been accepted, the Constitution, by section 26, article 2, determines the results. This section is mandatoryand self-executing. Defendant admits that he accepted the lucrative office of county judge. The decree, written by the Constitution itself, was that defendant, on the admitted facts, had vacated his seat in the House.
The constitutional provision prohibiting the holding of more than one lucrative office at the same time has nothing whatever to do with the question of the qualifications and election of members of the General Assembly. A person holding a lucrative office, upon accepting membership in either House, vacates the prior office. So, it is evident that holding the prior office could not become a question of qualification. The provision finds application with reference to a member of the General Assemblyafter his qualifications and election have been adjudged andafter he has been admitted as a member. Then, and then only, he comes under the constitutional mandate that if he accepts a second office he vacates his seat.
The vacation of his office as member of the House was necessary to defendant's accepting the second office; *Page 469 otherwise he would have violated the constitutional provision prohibiting the holding of two offices.
Unquestionably, the courts are without jurisdiction to determine the question of the qualifications and election of a member of the General Assembly. That jurisdiction belongs exclusively to each House. Appellant has cited numerous cases where courts have declined to take jurisdiction of election contests involving the right to a seat in the General Assembly, or where mandamus was sought to compel the issuance of a certificate of election. These cases are not in point here. No question of the election or qualifications of defendant is involved.
Defendant, upon accepting the second office, was as completely out of the office of member of the House as a stranger who had never held it. He was not again elected a member of the House. He could not put himself back in office. Neither could the House fill the vacancy.
Section 15, article 2, of the Constitution, provides:
"When vacancies happen in either House, the Governor for the time being, shall issue writs of election to fill such vacancies."
The provision is mandatory.
It cannot be doubted that, when defendant accepted the office of county judge, on July 5, 1937, he, on that date, automatically ceased to be a member of the General Assembly under constitutional mandate. When defendant accepted the second office no judicial proceedings of any kind were required to terminate his tenure of the first office. State v. Grace, 113 Tenn. 9, 82 S.W. 485; State v. Slagle, 115 Tenn. 336, 337, 89 S.W. 326. In 46 Corpus Juris 974, it is stated:
"A vacancy in office for any of the causes enumerated *Page 470 in the constitution or a statute is usually regarded as occurring at the time of the happening of the event which is the cause of the vacancy, and no judicial determination that the vacancy has occurred is necessary."
Cases from many jurisdictions are cited in the footnote in support of the above text.
The chancellor held that defendant had vacated his seat in the House. It was from this holding that defendant appealed. The bill, however, prays that the writ in the nature of a quowarranto be directed against defendant. I do not think this writ can be used to exclude even an intruder from the House. The General Assembly must be left to act as it sees fit, at all times, without any sort of interference by the courts; but the validity of legislation may be inquired into by the courts. *Page 471