
    State, ex rel. John P. Davis, v. Frank Evans.
    (Knoxville.
    September Term, 1909.)
    1. COUNTY SUPERINTENDENT OP SCHOOLS. Elected without certificate of qualification cannot, in a quo warranto proceeding, show his eligibility by allegation of improper question asked on examination, when.
    In a proceeding in the nature of a quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his regular term, in which the relator claimed that he was duly and regularly elected to the office, and that he qualified by giving bond and taking the oath of office required by law, but that defendant refused to turn over to him the books and papers appertaining thereto, on the alleged ground that the relator was ineligible, because he was not in possession of the certificate of qualification from the State board of education as required by statute (Acts 1895, ch. 51), the court cannot consider the relator’s contention that his failure to receive the certificate arose out of a mistake in an examination question asked him, and that if the question had been properly stated, he could and would have answered it correctly, and would have then received the certificate. (Post, pp. 187, 188.)
    Acts cited and construed: Acts 1895, ch. 54.
    3. CONSTITUTIONAL LAW. Statute requiring county superintendents of public schools to possess literary and scientific qualifications to be evidenced by certificate of State board of education is not unconstitutional as delegating legislative power.
    The general school law (Acts 1873, ch. 25), by section 8 thereof, created. the office of county superintendent of public schools, and provided that he should be a person of literary and seien-tifie attainments, and, by section 31 thereof, prescribed the subjects to be taught in the public schools; and said section 8 was amended by a subsequent statute (Acts 1895, ch. 54) prescribing the same qualifications, and also requiring candidates for the office, previous to the election, to file certificates of qualification given by the State board of education, after undergoing a public examination, as a prerequisite to eligibility. Held, that said section 8, as originally enacted and as amended, necessarily referred to said section 31 prescribing the subjects to be taught; and the proficiency required in literature and science is in respect to those subjects, and-the said amendatory statute (Acts 1895, ch. 54) is not unconstitutional, as delegating legislative power to the board, because the board is only made a legislative agency for executing the purpose of the legislature. (Post, pp. 188-193.)
    Acts cited and construed: Acts 1873, ch. 25, secs. 8 and 31; Acts 1895, ch. 54.
    Cases cited and approved: Leeper v. State, 103 Tenn., 500, 523, 526; People, ex rel., v. Kipley, 171 >111., 44; Ex parte Bassitt, 90 Ya., 679; People v. Dunn, 80 Cal., 211; Commissioners v. Smith, 22 Colo., 534; Blue v. Beach, 155 Ind., 121; Scholle v. State, 90 Md., 729; State v. Thompson, 160 Mo., 333; Hurst v. Warner, 102 Mich., 238; State, ex rel., v. Stewart, 74 Wis., 620; Commissioners v. Sisson, 189 Mass., 247; Saratoga Springs v. Gas Co., 191 N. Y., 123.
    Case cited and distinguished: Wright v. Cunningham, 115 Tenn., 445.
    3. COUNTY SUPERINTENDENT OE SCHOOLS. Statute requiring qualification by certificate is mandatory, and not merely directory.
    The mandatory statute (Acts 1895, ch. 54) prescribing the qualifications of county superintendents of public schools, and re-^ quiring them to possess a certificate of qualification given by the State board of education, is mandatory, and not merely directory, as shown by the clear intention of the legislature to make eligible for election only sucli persons as could comply witli tlie conditions indicated, which intention is emphasized by the provision giving the county court power to remove the superintendent for inefficiency. (Post, p. 193.)
    Acts cited and construed: Acts 1895, ch. 54.
    4. SAME. Relator submitting question of his eligibility cannot require it to be tested by independent proceeding by defendant.
    Where, in a proceeding in the nature of a quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his term, the relator submits in his bill, to the determina, tion of the court, the question of his eligibility to the office to which he had been elected, he cannot then successfully contend that, because he had been elected and had qualified by giving bond and taking the required oath, defendant should test relator’s eligibility and right to office by some independent proceeding. (Post, pp. 193, 194.)
    5. QUO WARRANTO. Incumbent bolding over is not a usurper for failing to take the required oath, when.
    In a proceeding in the nature of quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his term, the relator, newly elected to the office, cannot successfully contend that the defendant was a usurper, because he only took the oath of office, and did not take the oath to support the constitution of the United States and that of Tennessee, especially where it does not affirmatively appear that such oath was not taken. (Post, p. 194.)
    Cases cited and approved: Staggs v. State, 3 Hum., 372; State v. Allen (Tenn. Chy. App.), 57 S. W., 189.
    
      FROM CLAIBORNE.
    Appeal from the Chancery Court of Claiborne County. T. A. R. Nelson, Chancellor.
    Jourolmon, Welcker & Smith, for relator Davis.
    Carr & Jones, for defendant.
   Mr. Justice Neil

delivered the opinion of the Court.

This is a proceeding, in the nature of a quo warranto, to test the right of the defendant to hold the office of county superintendent of public schools for Claiborne county, holding over at the expiration of his regular term, which ended on the first Monday in January, 1909. The relator charges that on the day last mentioned he was regularly elected by the county court, the constituent body, to the office, by a vote of 12 in his favor to 7 in favor of the defendant, only nineteen justices being present and voting. He alleges that he was declared duly elected; that he gave the bond required by law, and took the oath of office, but the defendant refused to turn over to him the books and papers appertaining thereto, alleging, as ground for such action on his part, that the relator was -not eligible to the office, and therefore that his election was yoid. The point of ineligibility in controversy, as appears from the bill, is that the relator was not in possession of the certificate from the State board of education, required by chapter 54, p. 70, Acts 1895. It is alleged that the relator really possessed the qualifications required by the act, and that he was entitled to the certificate which it is the business of the board to issue, and that his failure to receive it arose out of a mistake on the part of the board in stating one of the questions submitted for his examination. It is alleged that the question- — one in mathematics — was improperly stated by the board, and if properly stated he could, and would, have given a correct answer, and would then have received the certificate. These are matters, of course, with which we can have no concern in the present proceeding. Aside from all this, however, it is insisted that the act in question is unconstitutional, and for that reason, if for no other, the relator was duly elected, and was entitled to the office. The purpose of the bill is to question the right of the defendant to hold over, the charge being that he is a usurper of the office in his attempt to hold over, and, incidentally thereto, it is alleged that the relator is the person entitled to administer the duties of the office, because of his said election.

There is no controversy in the record that the relator was elected in the manner above stated, and that, if be was eligible to tbe office, the defendant is a usurper, and should be restrained from further interference.

The case turns upon the constitutionality of the act above referred to. This act purports to amend section 8 of the general school law, which is chapter 25, p. 41, of the Acts of 1878.

Section 8, as it appears in the original act, reads as follows:

“Sec. 8. Be it further enacted, there shall be a county superintendent for each county, who shall he elected by the county court at its April or July term, 1873, and after 1874 he shall be elected biennially in January, and no member of the county court shall be eligible to said office. He shall he a person of literary and scientific attainments, and, when practicable, of skill and experience in the art of teaching, shall hold his office for two years, and shall receive such pay for his services as may be allowed him by the county court, to be paid upon the order of the chairman or judge of the county court by the county trustee. He shall be subject to removal from office for misbehavior or inefficiency at any time, by the county court: Provided, that the causes for such removal shall he communicated to him in writing:”

We have written in italics the part of this section which was amended by chapter 54 of the Acts of 1895. In this act the language above italicized is stricken out and the following substituted:

“Said county superintendent shall be a person of literary and scientific attainments, and of skill in the theory and practice of teaching: Provided, that preceding each biennial election, or any election to fill a vacancy for county superintendent of schools, each applicant shall file with the chairman of the county court a certificate of qualification given by the State board of education: Provided, that on the first Monday in October preceding each biennial election for county superintendent of schools, each applicant for said office shall undergo a public examination at the county seat of the county in which he or she is an applicant, by and be-fime a commission of three residents of the county, said commission to be previously appointed by the chairman of the county court, and to be citizens who, by education and experience, are most eminently qualified to hold said examination, the same to be held under such rules and regulations as may be prescribed by the State board of education: Provided, that if qualified as attested by said examination, said applicant shall receive a certificate of qualification by the State board of education.”

It is insisted in behalf of relator that this amendment devolves legislative power upon the State board of education, because it is a legislative function to prescribe the qualifications of public officers. It is argued that the language of the legislature in stating the qualifications required, that he “shall be a person of literary and scientific attainments, and of skill in the theory and practice of teaching,” is so general as to leave it practically within the power of the State board to declare the qualifications necessary for the office, since they can exact a very high grade of attainments, or may he content with a.very low grade, and they may indicate the different subjects upon which proficiency may be required within the wide range covered by the words “literary and scientific attainments.”

There is plausibility in the objection, but no real force. The act of 1878, which is amended, laid down, in section 31, the subjects to be taught in the public schools. It was Avith reference to these, of course, that the provisions of section 8 were enacted. It is noted that section 8, as originally written, prescribed, in substance, the same general qualifications. They meant, of course, a reasonable degree of attainment in literature and science, in respect of the subjects that were to be taught, to the end that the county superintendents might be able to exercise proper judgment in the selection of teachers and in the oversight of their work. Before section 8 was amended, the duty was devolved upon the county court of judging the qualifications of the county superintendent to be elected. Under the amendment means were provided, through boards composed of skilled persons, of ascertaining whether a candidate could come Avithin the description, or list of qualifications, indicated by the act. There was in this no delegation of legislative power, but simply the provision of administrative agencies for the purpose of aiding in the execution of the purpose of the legislature. The legislature itself prescribed the necessary qualifications, and the boards created and referred to simply determined whether given persons came within those requirements, or were possessed of those qualifications. It was impracticable for the legislature itself to lay down, with precision, the degree of efficiency in literature and science that the county superintendents should possess. In the nature of things, this must be left somewhat indeterminate, and it was highly proper that the ascertainment of the exact degree of learning necessary to carry out the purpose of the act should be left for the action of competent boards. See, on the. general principle, the following authorities: Leeper v. State, 103 Tenn., 500, 523, 526. 53 S. W., 962, 48 L. R. A., 167; People, ex rel., v. Kipley, 171 Ill., 44, 49 N. E., 229, 41 L. R. A., 775, 782, 783; Ex parte Bassitt, 90 Va., 679, 19 S. W., 453; People v. Dunn, 80 Cal., 211, 22 Pac., 140, 13 Am. St. Rep., 118; Pueblo County Com’rs v. Smith, 22 Colo., 534, 45 Pac., 357, 33 L. R. A., 465; Blue v. Beach, 155 Ind., 121, 56 N. E., 64, 50 L. R. A., 64, 69, 70, 80 Am. St. Rep., 195; Scholle v. State, 90 Md., 729, 46 Atl., 326, 50 L. R. A., 411, 414; State v. Thompson, 160 Mo., 333, 60 S. W., 1077, 54 L. R. A., 950, 952-953, 83 Am. St. Rep., 468; Hurst v. Warner, 102 Mich., 238, 26 L. R. A., 484, 491 , 47 Am. St. Rep., 525; State of Wisconsin, ex rel., v. Stewart, 74 Wis., 620, 43 N. W., 947, 6 L. R. A., 394; Comm. v. Sisson, 189 Mass., 247, 75 N. E., 619, 1 L. R. A., (N. S.), 752-755, 109 Am. St. Rep., 630. And see the full discussion of the general subject by Cullen, C. J., in Trustees of Saratoga Springs v. Saratoga, etc., Gas Co., 191 N. Y., 123, 83 N. E., 693, 18 L. R. A. (N. S.), 713, 718, et seq. The case of Wright v. Cunningham, 115 Tenn., 445, 91 S. W., 293, cited by complainant’s counsel, is not at all in conflict with the principle we have invoked as the basis of the present decision.

We need not pursue the subject. We are of the opinion that the amendment is clearly constitutional.

It is insisted that the terms of the amendment are not mandatory, but only directory. We think this is a mistaken view. It was the clear purpose of the legislature to make eligible for election only such persons as could comply with the conditions indicated. This general purpose is emphasized by the provisions of the original section giving.the county court power to remove the county superintendent for inefficiency.

There are some points of alleged unconstitutionality Insisted upon other than the one above referred to, but we do not think they deserve special consideration in this opinion. Suffice it to say that we have examined them, and And no merit in them.

It is insisted that since the relator was elected by the county court, and had executed bond, and had taken the oath, he should be permitted to take and administer the office, and the burden of establishing his ineligibility should be cast upon the defendant, and be presented by him in some independent litigation. Whatever force might be in this, as an original suggestion, it cannot be considered here, because the relator himself submitted in his bill, to the determination of the court, the question of eligibility.

It is insisted that, at all events, the defendant should be declared a usurper because, when he was inducted into office, in 1907, he did not take the oath to support the constitution of the United States, and of the State of Tennessee, but that he took only the oath of office. We do not think there is any sufficient allegation in the bill upon this subject (Gibson’s Suits in Chancery, sec. 455), and, if there was, it does not affirmatively appear that he did not take the oath refei’red to, and for these reasons the point suggested is not well taken (State v. Allen [Tenn. Ch. App.], 57 S. W., 189; Staggs v. State, 3 Humph., 372). In saying this, we are not to be understood as holding that the inadvertent omission to take the oath referred to would result in a deprivation ipso facto of the defendant’s official character.

On the grounds stated, we are of the opinion that the decree of the chancellor, in favor of the defendant, must be sustained.  