Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-04-15

The Mandamus on the County Court Made
PerempiOry---The Injunction on MI.
John Brown Made Perpetual.
Important Legal Decision by Judge AndeF-
son, Of the Law Court.

Important Legal Decision by Judge AndeF-
son, Of the Law Court.
State of Tennessee, ex REL, George NJ.
Greedy VS.. 7. O.. Biakely and Justices OF
the County Court of Shelby county.
This is an application for a writ of man
damus to compel the Justices of Shelby
county to induct the ~relator, George NJ.
Greedy, into the office Of Register of Shell
by county.
AT the meeting of thsiQ uarterly Court of
the county, on the 4th of April, 1870, the
relator appeared before the court, and, in
open court, produced a certificate Of cleo
ton, in these words;
"CERrIFICATE OF ELECTION.
SAT q general election held in Shelby
county, State of Tennessee, on the 26th
day OF March, AID. 1870, George M. Greedy
was duly elected to the Office of Register
of Shelby county, State of Tennessee.
Witness my hand at Memphis, Shelby
county, State of Tennessee, this 2sth day
of March, A. ID. 1870.
(Signed) as. H. SHOCK,
''Com'r of Reg'n for Shelby county"
He thereupOn announced to the court
hat he was ready to give his bond and
lake his oath of office, and asked to be
indicted into the office.
The Justices refused the application and
this proceeding was instituted to compel
them to induct the relator into the office.
Our Code, section Az, in relation to
County Register, provides that upon
producing the certificate Of his election to
the County Court of his county, at the
next session after the date and delivery
of the same, he shall be entitled to enter
upon the discharge of the duties of his
Office, first giving bond" etc.
This imposes upon the County Court
the duty of inducing the applicant into
the Office upon his producing the certif-
cate of election given by the proper
officer.
This duty imposed upon them is
purely ministerial in its character, and
has nothing of the judicial element about
it. And whilst diseharging this minister
al function, the only thing that they could
Ook to is the certificate of election. If
the applicant has thar given by the prop
er officer, then it is their clear duty to pro-
coed and induct him upon his giving prop
er bonds, ETC., and their refusal to do so
entities the applicant to a mandamus to
compel them to do so.
After the return has been made to the
mandamus and it comes up for trial, can
this Court lOOk beyond the certificate of
election? In other words, can the re-
spondents in their answer waive the ques-
ton of election or no election? I think
clearly not. The law has long been set
tied to the contrary.
In Chitty's note Z, to Sd Blsckstone's
Commentaries, side page 265, it is said:
admission under a msndamus gives
no right, but only a legal possession to
enable the party to assert his
right, if he has any. Hence non
JHlt eIectuS fhe WAS not elected) has
been holden not TO be a good retur to a
mandamus to swear in a church warden,
[Strange S94-5l, because it is directed only
TO a ministerial officer, who is to do his
duty, and no Inconvenience can follow;
for if the party has the right he ought to
be admitted; if be has not the admission
tOiU do him no good. Whenever the Office
is but ministerial he Is to execute his part,
let the consequent be what it will.
TStrange $751;"
This authority is clear and emphatic.
1t shows that on the hearing of this man
damus the question of election or no cleo
ton cannot be raised or inquired into.
1 am compelled to make the mandamus
peremptOry.
Strictly this is all that I need say, but
so important is the matter and so start
ling are the circumstances that have been
developed in the progress OF this trial,
that l deem it my duty to make the fol-
additional remarks.
1t is not surprising that when the re-
lator made his application to our County
Court, composed as it is of a body of citi-
selected by their neighbOrs to nan
age the affairs of the county on account
Of their plain, blunt honesty of character,
and sound common sense, that they
should have been startled by the eircum-
stances of the case, and have Immediately
attempted to Illustrate what they could
but regard as a trick and a fraud upon
The people who had sent them there to
watch over their rights.
But they mistOOk the remedy. Whilst
he relator applied to them in their min
capacity, they should haye obeyed
he injunction of the law. They should
nave indicted him into the Office, and
no inconvenience could follow" for
here would hsye been found numbers of
who would have readily stepped
TO have contested the election
Ind tried the right of this party to the
)f1ce, and as soon as that shoaldhaYe been
lone, the character and functions OF the
curt would have instantly changed, and
instead of simply having to perform a
Ministerial act, they would then, by Vir-
Ue of the contest, under the provisions of
he Code, been converted into a solemn
tribunal, clothed with the exclusive power
o try the validity of this election.
And now, after they shall have obeyed
be mandate of this court, and indicted
his party into Office, eff he has not the
light the admission will do him no good"
Or his election will certainly be contest
d and when it Is, the County Court will
e the sole judges Of the validity of this
claim of election, and, l
ave no doubt, will be fully competent to
rotect the citizens of our county from
hat at least seems to nave been an at
7mpt by trickery to deprive them of the
and open choice of their Register. L
-ould gladly have availed myself of the
over, had the law given it to me,
} have finally settled this matter,
nd saved the parties and the
Ounty all further expense. But / sit here
administer law, not to make it, and ,
hen a case is brought before me 1 can
My go In il so far as the law confers the
lrisdiction upon my court and no further.
Let h mandamus be made peremp-
Dry. ia ANDERSON, Judge, etc.
With reference to the other branch of
he case, the injunction against Mr.. John
counsel for the respective parties /
Of being able TO agree as to the DISPOSE :
on of the case; Judge Anderson decided ;
lat the election of Mr.. Brown to the Office (
Register Of Shelby county was not ac- !
riding to law, and therefore the iniunc-
D n should be mad perpetual on Mr.. 4
rown. County Attorney Wilson notified :
Court that they prayed ar appeal from
e decision to the next term OF the Su-
'eme Court.