Beasley v. Cunningham

• Citation: 103 S.W.2d 18
• Parties: BEASLEY v. CUNNINGHAM.
• Decision Date: 27 March 1937
• Court: Supreme Court of Tennessee

Page 18

103 S.W.2d 18

BEASLEY v. CUNNINGHAM.

Supreme Court of Tennessee.

March 27, 1937.

Error to Circuit Court, Trousdale County; R. W. Smartt, Judge.

Election contest by W. J. (Bud) Beasley against Jim Tom Cunningham. Decree was entered, and W. J. (Bud) Beasley brings error.

Reversed and bill dismissed.

Seay, Stockell & Edwards, of Nashville, J. D. McMurray, of Hartsville, and I. D. Beasley, of Carthage, for plaintiff in error.

Roberts & Roberts, of Nashville, J. D. Hankins, of Hartsville, and H. B. McGinness, of Carthage, for defendant in error.

McKINNEY, Justice.

This is a contest over the office of county superintendent of roads in Trousdale county. In the August, 1936, election, Beasley received 453 and Cunningham 564 votes, a majority of 111.

By this proceeding Beasley, as holdover, is contesting Cunningham's right to the office, upon the sole ground that he is ineligible to hold said office by virtue of section 2, chapter 92, Private Acts of 1935, First Extra Session. Cunningham contends that this provision of the act is invalid and void.

By chapter 27, Private Acts of 1935, the office of county road commissioner for Trousdale county was abolished, and defendant thereby legislated out of the office which he had filled for four years pursuant to chapter 106, Private Acts of 1931. By chapter 31, Private Acts of 1935, a new road law was enacted for Trousdale county, which became effective on January 24, 1935. By section 1 of said act a board of highway commissioners was created composed of the chairman of the county court, the county superintendent of roads to be created, and a third member to be elected by the county court. The act provides that the members of this board shall be citizens of good character, freeholders of said county, and over the age of twenty-one years.

Section 2 of said act creates the office of county superintendent of roads, fixes the term at four years, and designates petitioner, Beasley, to fill the office until the regular election in August, 1936, and until his successor is elected and qualified. Beasley thereupon duly qualified and took over the office.

Immediately after the passage of the act just referred to defendant Cunningham, possessing the qualifications named in the act, announced his candidacy for said office in the August, 1936, election. Thereafter, at the First Extra Session in July, 1935, the Legislature, by chapter 92 of the Private Acts, re-enacted chapter 31 of the Private Acts of the regular 1935 session, to which was added a qualification for the office of county superintendent of roads that would render Cunningham ineligible for election in August, 1936. Section 2 of said act, as thus amended, is as follows:

"That there is hereby created the office of County Superintendent of Roads who shall be elected by the qualified voters of the Counties coming within the provisions of this Act, who shall hold his office for a period of four years and until his successor is elected and qualified, but the first County Superintendent of Roads shall be Walter J. (Bud) Beasley, who shall hold until the regular August Election of 1936 and until his successor is elected and qualified and his successor's term of office shall begin on the first Monday in September after said election; Provided, that no person shall be eligible to election to the office of County Superintendent of Roads, or to the office of member of the Board of Highway Commission, at the August election 1936, who has served as County Road Commissioner of said County for as long as four years in the eight year period preceding the date of said election; and provided further that no person hereafter elected to either of said offices shall be eligible to be elected or to serve for more than two successive terms. The County Superintendent of Roads shall devote his entire time to the duties of his office and shall receive a salary of $100.00 a month for his services and shall furnish his own means of conveyance while attending to the duties of the office, but may use gasoline and oil belonging to the county while actually attending to the duties of his office." (Italics ours.)

It is conceded that the qualification which we have italicized applies solely to Cunningham, and then only at the August, 1936, election; that it can never apply to any other person, and will not preclude Cunningham from filling said office by appointment, in case of the death or resignation of the incumbent, or by the will of the electorate at some subsequent election. The Legislature has said, in effect, that Jim Tom Cunningham is not eligible to be elected to said office at the 1936 election, but may be chosen for the office thereafter. Can the Legislature thus single out an individual and inhibit him from filling an elective public office for a single specified term, is the question which we are called upon to determine.

Under our system of government the Legislature, unless restrained by the Constitution of the State or that of the United States, can pass any law it sees fit. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 189, L.R.A.1916F, 177. The restraint must be either express or by necessary and fair implication. Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229; Smiddy v. City of Memphis, 140 Tenn. 97, 203 S.W. 512; Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144. A law which is partial in its operation, intended to effect particular individuals alone, is unwarranted by the Constitution and is void. Vanzant v. Waddel, 10 Tenn.(2 Yerg.) 260; State Bank v. Cooper, 10 Tenn.(2 Yerg.) 599, 24 Am.Dec. 517; Parks v. Parks, 59 Tenn.(12 Heisk.) 633; Daly v. State, 81 Tenn.(13 Lea) 228. In Motlow v. State, supra, this court, in considering the constitutional provisions prohibiting arbitrary and unreasonable classification, said: "These provisions forbid that any mere individual shall be singled out for legislative action, but do not deny the right to the lawmaking power to make proper classifications for purposes of legislation." In Fountain Park Co. v. Hensler, 199 Ind. 95, 155 N.E. 465, 468, 50 A.L.R. 1518, the Supreme Court of Indiana, in holding an act unconstitutional which conferred the power of eminent domain upon Chautauqua corporations to enable them to condemn private property for their meeting places, said:

"It may not be impossible for companies other than appellant to come within the classification made in this act, but it is improbable that there will ever be many, if any at all, that can come within its narrowed and limited provisions. The legislative history of the act, Indiana House Journal, 1923 Session, p. 297, shows that the bill for the act was introduced by the representative from the county in which the appellant company is located; this action was begun within a few months after the law was enacted, and it is quite apparent that the act was intended by its author and by the General Assembly which enacted it to apply to this one corporation alone. This would invalidate the act. School City of Rushville v. Hayes, 162 Ind. 193, 70 N.E. 134; Rosencranz v. Evansville [194 Ind. 499, 143 N.E. 593]."

In State ex rel. Brassell v. Teasley, Judge, 194 Ala. 574, 69 So. 723, 730, Ann.Cas.1918E, 347, the Supreme Court in a four to three opinion held an act valid which provided: "No person shall be eligible to the office of president or member of the board of commissioners * * * who shall, either by election or appointment, have held the office of president or member of the board of commissioners of any such city, three consecutive years, within the four years immediately preceding the date of the election for members of the board of commissioners." Gen.Acts Ala.1915, p. 65, § 11.

We shall refer more particularly to this case later, but as bearing upon the question of a law intended to affect particular individuals alone, we quote from the dissenting opinion of Judge Mayfield as follows:

"I do not doubt, much less deny, the power of the Legislature to fix any reasonable qualifications upon the privilege of holding office, and to deny the privilege to any citizen who does not possess the qualifications so fixed; but I do deny the power of the Legislature to take arbitrarily from certain individuals privileges enjoyed by others of the same class. I do not believe that an act of the Legislature, attempting so to do, is made valid by a classification of the citizens which did not then, never did, and never can, apply to any other citizens than those intended to be discriminated against. Such I believe is the effect, if not the purpose, of the provisions of the act in question. Experience may demonstrate fitness or unfitness to discharge given official, or nonofficial, duties; but it certainly does not tend to disqualify one for the discharge of duties which he is accustomed to discharge, nor can it be for the public good to deny the right to those who have experience; and this is the only thing that distinguishes these four incumbents from other citizens qualified to be elected to office. This is both an unwarranted and unreasonable classification.

"The qualification for holding office must be a reasonable one; it cannot be an arbitrary or an unreasonable one."

In 6 R.C.L. 370, 371, it is said: "No legislative act is valid that is clearly obnoxious to the principle of equality in rights guaranteed by the bill of rights."

We have been unable to find a decision sustaining an act of the Legislature that only...