STATE OF TENNESSEE on the Relation of G. L. MALONEY et al., Plffs. in Err., v. STEPHEN P. CONDON, T. T. McMillan, James Rich, and H. C. Anderson.

Messrs. Joshua W. Caldwell and Charles T. Cates, Jr., for defendants in error.

Mr. Chief Justice Fuller delivered the opinion of the court: This was a proceeding under provisions of the Code of Tennessee, authorizing a bill in equity to be filed 'whenever any person unlawfully holds or exercises any public office or franchise within this state.' Shannon's (Tenn.) Code 1896, § 5165, cl. 1; § 5167.

By sections 5168 and 5179 it is provided that the suit may be brought 'by the attorney general for the district or county, when directed so to do by the general assembly, or by the governor and attorney general of the state concurring' or 'on the information of any person, upon such person giving security for the costs,' when the attorney general for the district or county may institute the proceeding without direction. State ex rel. Johnson v. Campbell, 8 Lea, 74, 75.

Such was this suit, which was not brought by direction of the general assembly, or of the governor and attorney general of the state, but was instituted at the instance of persons superseded in public office by an act of the general assembly (approved by the governor and carried into effect by him) which they charged was unconstitutional. Acts 1901, chap. 8.

The question of constitutionality had been raised in an application for mandatory injunction to compel the county judge to approve the bonds of the persons appointed commissioners under the act, the writ had been awarded and obeyed, and the decree was affirmed and the act sustained by the supreme court at the same time that the decree in this case, subsequently brought, was affirmed. Condon v. Maloney, 108 Tenn. 82, 65 S. W. 871. But the supreme court also ruled in the prior case that as the writ had been obeyed it had spent its force, so that, even if they differed with the chancellor as to the use of the particular process,—an objection therein urged,—a reversal of his decree 'could not undo what had been done,' and to enter it 'would be an idle ceremony.'

In the circumstances this case assumed the aspect of a civil contest between individuals, and not of a prerogative writ to correct usurpation of office.

Sections 5175, 5176, 5177, and 5180 are as follows:

'5175. Whenever the action is brought against a person for usurping an office, in addition to the other allegations, the name of the person rightfully entitled to the office, with a statement of his right thereto, may be added, and the trial should, if practicable, determine the right of the contesting parties.

'5176. If judgment is rendered in favor of such claimant, the court may order the defendant to deliver to him, upon his qualifying as required by law, all books and papers belonging to the office in his (defendant's) custody, or under his control, and such claimant may thereupon proceed to exercise the functions of the office.

'5177. Such claimant, in this event, may also, at any time within one year thereafter, bring suit against the defendant, and recover the damages he has sustained by reason of the act of the defendant.'

'5180. When a defendant, whether a natural person or a corporation, is adjudged guilty of usurping, unlawfully holding, or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that he pay the costs.'

In State ex rel. Curry v. Wright, 5 Heisk. 612, it was held that the bond given in case of appeal in an action for usurpation of office need be only for costs, and the court, after referring to §§ 5176, 5177, and 5180 (by the prior numbers), said:

'These provisions are specific and clear that the matter in contest to be decided is the usurpation of the office or franchise; and the judgment, exclusion from that office or franchise; and the money judgment to be given is for costs, and the damages, if any have accrued, are provided for in another suit to be brought within a year after the judgment.

'The provision, 'that the suit will be conducted as other suits in equity,' only means that it shall be conducted as such a suit to the attainment of the results above indicated, but cannot be held to include an inquiry into the damages sustained.'

The present case was argued March 12 and 13, and it appears on the face of the bill that the terms of office of all the relators, except the county judge, expired before that day. And this was true as to him, because we find, by reference to articles 6 and 7 of the Constitution of Tennessee, and State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 S. W. 419, that his then term of office as county judge terminated in 1902.

As to the defendants, the bill shows that defendant Anderson was merely a subordinate appointee of his codefendants, and that they had been appointed by the governor commissioners under the act of February 8, 1901. That act provided for the appointment of three commissioners, to 'hold their offices until the next general election of county officers, when their successors shall be elected by the people, and every two (2) years thereafter said offices shall be filled by popular election.' The next general election of county officers referred to was held, according to § 1154 of the Code, in August, 1902. So that these commissioners were appointed to serve until that date, and their temporary commissions then terminated.

We cannot assume that relators, who were originally elected by the county court, would hold over, and manifestly, the provisional title of defendants has determined. It follows that the relief as prayed cannot now be grante.

There are cases in quo warranto in which judgment of ouster has been entered, although the term of the person lawfully entitled had expired, and also where informations have been retained, when the statute provided for fine or damages; but here the proceeding cannot now be maintained as on behalf of the public; and, considered, as counsel insists it should be, as merely a contest between two sets of officials, and not between the state and its officials, the state courts would be at liberty to treat it as abated, and the mere matter of costs cannot be availed of to sustain jurisdiction. See Boring v. Griffith, 1 Heisk. 457, 461; State v. McConnell, 3 Lea, 332; Williamson County v. Perkins (Tenn. Ch. App.) 39 S. W. 347; State ex rel. Robinson v. Lindsay, 103 Tenn. 635, 53 S. W. 950.

Doubtless the question of the validity of the act of 1901 is of importance, but it has been upheld by the highest judicial tribunal of the state of Tennessee as consistent with the state Constitution, and it affects only the citizens of that state.

If we were to hold that the act could be subjected to the test of the 14th Amendment, and that it could not stand that test, we should do nothing more than reverse the decree below and remand the cause, and, as such a judgment would be ineffectual, we must decline to intimate any opin on on the subject.

'The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' Mr. Justice Gray, Mills v. Green, 159 U. S. 651, 653, 40 L. ed. 293, 294, 16 Sup. Ct. Rep. 133.

We think this writ of error comes within the rule thus declared, and it is therefore dismissed without costs to either party.