O'Brien v. Rutherford County

• Decision Date: 09 March 1956
• Citation: 199 Tenn. 642,3 McCanless 642,288 S.W.2d 708
• Parties: , 199 Tenn. 642 J. Murfree O'BRIEN v. RUTHERFORD COUNTY, Honorable Shelton Edwards, County Judge, et al.
• Court: Tennessee Supreme Court

Page 708

288 S.W.2d 708

3 McCanless 642, 199 Tenn. 642

J. Murfree O'BRIEN v. RUTHERFORD COUNTY, Honorable Shelton Edwards, County Judge, et al.

Supreme Court of Tennessee.

March 9, 1956.

Jesse W. Huggins, II, Murfreesboro, Lewis S. Pope, Nashville, for appellants.

Ewing Smith, Murfreesboro, for appellee.

TOMLINSON, Justice.

Mr. O'Brien was Circuit Court Clerk of Rutherford County continuously from September, 1930 until August 31, 1954. By virtue of his office as Circuit Court Clerk he performed the duties of clerk of the General Sessions Court of Rutherford County from the date of its creation by Chapter 384 of the Private Acts of 1947. This Act required him to do so. Section 15 of that Act, as amended, Priv.Acts 1947, c. 737, directed that the county pay him out of its general funds a salary of $1,300 per annum for this service, and that he pay to the county all fees collected in the General Sessions Court. The total compensation received by O'Brien during his entire tenure of office was substantially less than the salary allowed out of fees collected unless he may apply to this deficit fees collected in the General Sessions Court. These fees were much more than double such deficit.

Under the circumstances stated, O'Brien filed this bill wherein the relief sought was a decree (1) declaring Section 15 of the 1947 Rutherford County Act unconstitutional, and that it be elided, and (2) then adjudging him entitled to have this deficit paid out of the fees collected in the General Sessions Court. From the decree of the Chancellor granting the relief prayed Rutherford County has appealed.

It is properly conceded by the county that (1) all fees collected by the clerk at any time during his tenure of office allocated to the payment of his statutory salary may be applied to the payment of any deficit in such salary during any previous or subsequent year or years or terms of his tenure, Anderson v. Maury County, 193 Tenn. 62, 68-69, 242 S.W.2d 81; (2) a provision in a Private Act which purports to deprive a Circuit Court Clerk of the fees collected by him in the performance of his statutory duty as clerk of a General Sessions Court is a provision which violates Article 11, Section 8 of our Constitution, Carmichael v. Hamby, 188 Tenn. 182, 217 S.W.2d 934; Anderson v. Maury County, supra; Gregory v. Trousdale County, 194 Tenn. 670, 254 S.W.2d 753; (3) this provision may properly be elided from the 1947 Rutherford County Act at the instance of one who is not estopped from attacking its constitutionality.

Rutherford County insists, however, that the dealings between it and O'Brien and his conduct within the premises were such as to equitably estop him from questioning the constitutionality of this provision of the 1947 Act.

The 1947 statute creating the General Sessions Court for Rutherford County, as originally enacted, fixed the compensation of the Circuit Court Clerk for performing the duties of Clerk of the General Sessions Court at $1,000. O'Brien thought that compensation should be $1,500 per annum and requested such an amendment. Pursuant thereto it was increased to $1,300 per annum.

Commencing in April, 1947, the effective date of the statute, and continuing to the end of O'Brien's tenure of office in August, 1954, a warrant was drawn each month against the general funds of the county for $108.30 payable to O'Brien for his services as clerk of the General Sessions Court. He accepted these warrants. The total amount so received is credited in the final decree herein against the maximum salary which he is entitled to receive under the statute.

Commencing with the beginning of his services as clerk of the General Sessions Court in April of 1947, and continuing through July of 1951, O'Brien paid to the county each month all fees collected by him as clerk of the General Sessions Court. Commencing apparently in July of 1951 to the end of his tenure of office in August, 1954 he retained in what may be termed a special account all such fees.

O'Brien was re-elected clerk of the Circuit Court in September of 1950. He was a candidate in the primary held in the spring of 1954 for the selection of a nominee by his party as its candidate in the election for the term commencing September 1, 1954. He was defeated. Thereafter on June 15, 1954, he filed this bill. As a candidate for the terms commencing in September of 1950 and 1954, respectively, he made no representations as to whether he would or would not attack the constitutionality of Section 15 of the 1947 Act.

Rutherford County insists that the facts stated subject O'Brien to the application of the rule which declares that parties may so conduct themselves, or deal with each other, upon the faith of an unconstitutional statute that "neither may invoke the aid of the courts to undo what they themselves have done." State, for Use and Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 333, 250 S.W.2d 549, 553.

On the other hand, estoppels are not favored because they 'may exclude the truth, and no one should be deprived of setting up the truth unless it is in direct contradiction of his previous conduct and he has thereby induced another to act to his prejudice.' Rogers v. Colville, 145 Tenn. 650, 661, 238 S.W. 80, 83. The truth in this case is that section 15 of the 1947 provision does not, per se, ultimately deprive O'Brien of his right to apply the fees collected by him in the General Sessions Court to the payment of the salary which the general law allows to all the Circuit Court Clerks of the State. This is because "an unconstitutional statute is not a law, does not of itself confer any rights, duties, or obligations, and is 'in legal contemplation, as inoperative as though it had never been passed."' State, for Use and Benefit of Lawrence County v. Hobbs, supra, 194 Tenn. 333, 250 S.W.2d 553. It is, however, the duty of the county to interpose the defense of estoppel if there is a reasonable likelihood that it applies, and thus have the security of a judicial determination thereof.

Such being the truth in this case, the question is whether the facts stated require the Court to hold that those facts amount to such conduct upon the part of O'Brien and to such dealings with Rutherford County as to estop him from invoking the aid of truth.

The fact that O'Brien complied with the terms of this unconstitutional provision from the time of its enactment until the filing of this suit to declare it unconstitutional does not, nothing else appearing, deprive him of the right to attack the constitutionality of this provision, and thereby have declared his rights to the fees in question. This is so because the rule is that: 'By force of the presumption in favor of the constitutionality of statutes, the public and individuals are bound to observe a statute, though unconstitutional, until it is declared void by an authoritative tribunal.' Rust v. Newby, 171 Tenn. 127, 130, 100 S.W.2d 989, 990.

The fact that the county was paying O'Brien each month in obedience to an unconstitutional statutory direction the salary therein provided has not prejudiced the county. In so paying him it was only returning to O'Brien a part of that which in truth belonged to him and which he, in obedience to the mandate of this unconstitutional provision, had turned over to the county.

The latest decision of this Court on the question is directly contrary to the insistence that O'Brien is estopped by reason of the fact that he requested the author of the Rutherford County General Sessions Court Act of 1947 to so amend the act as to provide a salary of $1,500 rather than $1,000 already fixed in the Act, with the result that it was amended so as to increase that salary to $1,300 per annum. Carmichael v. Hamby, 188 Tenn. 182, 190, 192-193, 217 S.W.2d 934. Moreover, as we understand the stipulation between the parties hereto, he did not seek the passage of the Act. He simply urged an amendment as to the compensation which the Act said he should receive for the services which it required him to perform.

The final item of O'Brien's conduct which, in the county's opinion, estops him is that after this General Sessions Court Act of 1947 was enacted, O'Brien was again a candidate for office in 1950 and 1954, but made no reference to whether he would attack the constitutionality of this provision of the Act. The insistence is that such silence upon the part of O'Brien, after previously obeying the mandate of this provision, amounted to a representation that he would...