
    Pucket v. Bean.
    Defaulter Ineligible to Office. Question may be determined on mandamus. Under the Constitution of the State, the election of a defaulter to the treasury to an office is simply void. Where a person elected seeks to compel induction into office hy mandamus, and the county judge, in response to the writ, alleges that he refuses to induct because the elect is a defaulter, it is the duty of the court before whom the writ of mandamus is made returnable, to try the issue thus tendered, and to give or withhold a peremptory fiat as the truth or falsity of the charge of defalcation shall appear. It is not necessary that the defalcation should have been previously shown in some other legal proceeding. Any decree or judgment finding the elect a defaulter, would only establish the fact prima facie. The question must be enquired into anew when he presents himself for induction into office.
    FKOM HAMILTON.
    Appeal in error from Circuit Court of Hamilton, September Term, 1872. J. B. Hoyl, J.
    Cooke & Eakin, for Puckett, with whom was V. A. Gaskill, who said:
    
      First. Judge Puckett had a right judicially to notice the fact that Bean, by the Constitution and the Code, was. inelligible to the office of sheriff: 1 Green-leaf on Ev., ch. 2, sec. 6; 3 Hum., 233.
    1. If a defaulter: Tenn. Constitution, sec. 25; Code, sec. 748, sub-see. 4; 6 Hum., 41.
    2. For attempting to hold more than one lucrative office at the same time: State Const., sec. 26.
    Bean is still tax collector for special cases, and therefore cannot take the office of sheriff: Code, secs. 55, 56, 661, 670, b, last clause.
    He has important official powers and emoluments; Code, secs. 606, a, b, 610, 648,' 1.
    He cannot get rid of his tax collector’s office during the two years granted by sec. 661, unless he dies, is removed legally, is suspended, or leaves the State, or settles with the State.
    
      Second. Is Bean in default as tax collector ?
    1. He owes all on tax book: Code, secs. 499 and 503.
    2. How to get credits on settlement: Code, art. 6, sec. 648.
    3. Bound on bond for what ought to be collected: Sees. 492, 599-1-2.
    4. Record shows Bean has not settled as tax collector, or attempted it; has funds in hand not turned over to the proper authority, and is therefore in default.
    TjRBWHItt & SHARP, for Bean, insisted:
    1. The appeal is improperly granted to defendant Puckett as an individual, and should be dismissed.
    2. The County Court has no power to refuse to induct the sheriff elect into office on account of any personal disqualification to hold the office to which elected. This objection can only be made in the mode and manner prescribed by law. See Code, secs. 889, 907. And this is the mode to be adopted when the election is void because the person elected is constitutionally inelligible. See Code, sec. 912.
    
      3. If the party give the bond required, and take the oath prescribed,- a certain and definite penalty is prescribed by law if he act as such officer when disqualified: Code, see, 749. This is persuasive evidence that he is to be sworn in, unless the election be contested.
    4. All that the petitioner is bound to show to authorize his induction into office in the first instance is, 1st, his certificate of election; 2d, his bond, and offer to take the oaths required; such being shown, is a prima facie fight. If he labor under any of the disabilities known to the law, or is elected by fraud, etc., or his. certificate is false, the laboring oar is on the person averring it, and must be clearly shown; it is not incumbent on the applicant to negative the existence of such disabilities. 3 Hum., 233; 2 Hum., 133.
    5. The questions of ineligibility cannot be inquired into in this summary ex parte manner. There must be a suit regularly instituted in the mode and manner prescribed by law, issues made up under the order and direction of the court, and trial according to the practice of the court. See Code, secs. 889, 907; Boring v. Griffith, 1 Heis., 456; Blackburn v. Vick, 2 Heis., 377; see, also, 7 Col., 59.
    6. The case of Newman v. Justices of Jefferson County, 6 Hum., 41, does not apply to or contravene the position we take, but is rather an authority to sustain our view of the case, — the delinquency and default having been judicially ascertained, and constituting a part of the proceedings in the case.
   TubNey, J.,

delivered the opinion of the court.

By sec. 25, art. 2, of the Constitution of the State,, it is ordained: “Eo person who hath heretofore been,, or may hereafter be, a collector or holder of public-moneys, shall have a seat in either house of the General Assembly or hold any other office under the-State, until such person shall have accounted for and paid into the treasury all sums' for which he may be-accountable or liable.” Sec. 1, art. 11, establishes:, “All laws and ordinances now in force and use in. this State, not inconsistent with this Constitution, shall continue in forcé and use until they shall expire, or be altered or repealed by the Legislature.” Sec. 748-i of Code enacts: “All free white males of the age of twenty-one years, who are citizens of the United States and of this State, and have been inhabitants of the State, county, or district or circuit the period required, by the Constitution and laws of the State, are qualified to hold office under the authority of this State,, except * * * (sub-sec. 4) those who are defaulters to the treasury at the time of the election,, and the election of any such person shall be void.”

If one elected to the office of sheriff of a county shall be refused induction into office by the Judge of the County Court, and petitions for writ of mandamus-asking that such judge shall show cause why he so refuses, and the judge answer that the petitioner has-been tax collector, and, as such tax collector, is defaulter to the State, county and public schools, he by such answer tenders the issue, and it is the duty of . the court before whom the writs are returned to try the question, and, upon its truth or falsity, to award •or refuse the perempty writ. While the issue of default may be raised in other modes, the most direct and convenient is the one presented by this record.

It is not necessary that there shall have been a judgment of conviction. Such judgment would ,be merely evidence prima faaie, and not conclusive of the fact, and might be for sufficient reason avoided by the party charged, as that he had before the election paid it, or had been relieved by the Legislature.

Whatever judgment or decree may have been pronounced against the officer elect convicting him of •default, the question must be tried de novo when he presents himself for and is refused the office.

The facts in the record show, the petitioner to have been a defaulter at the time of his election and at the time of. his presentation for induction. The election was void.

Reverse the judgment and dismiss the petition.  