Cagle v. McCanless

• Decision Date: 09 December 1955
• Citation: Cagle v. McCanless, 199 Tenn. 128, 285 S.W.2d 118, 3 McCanless 128 (Tenn. 1955)
• Parties: Herbert CAGLE et al. v. George F. McCANLESS et al. 3 McCanless 128, 199 Tenn. 128, 285 S.W.2d 118
• Court: Tennessee Supreme Court

Page 118

285 S.W.2d 118

Herbert CAGLE et al. v. George F. McCANLESS et al.

3 McCanless 128, 199 Tenn. 128, 285 S.W.2d 118

Supreme Court of Tennessee.

Dec. 9, 1955.

Thomas S. Myers and W. A. Wilkerson, Chattanooga, Nat Tipton, Asst. Atty. Gen., for appellants.

Roberts & Weill, Chattanooga, for appellees.

NEIL, Chief Justice.

The complainants, as citizens and taxpayers of Hamilton County, filed their original bill in the Chancery Court against George F. McCanless, Attorney General of the State; the Commissioners of Election; members of the Hamilton County Council; and the Chairman of the County School Board, seeking a declaratory judgment to the end that Chapter 31 of the Private Acts of 1955 be declared unconstitutional.

The bill charges that the said Act is unconstitutional in that 'it is attempting to abolish the office of the Superintendent of Public Instruction in Hamilton County, Tennessee, and to create the same office with the identical duties and responsibilities under the name of Director of Schools of said County. That by the provisions of said Act it is attempted to transfer the election of this county official from the County Court and vest it in the County Board of Education to fix the compensation, qualifications and tenure in office of said county official.' It is further charged that the Act is unconstitutional because it is in conflict with Article XI, Section 17, of the State Constitution which ordains: 'No county office created by the Legislature shall be filled otherwise than by the people or the County Court.' Under the general law of the State, Code, Section 2346, the county court is authorized to elect the County Superintendent of Schools. The bill, as amended, charges that the Act is in violation of Article XI Section 8, of the Constitution which provides that the Legislature may not suspend a general law for the benefit of an individual.

The defendants, members of the County Board of Education, demurred to the bill on numerous grounds which need not be specifically stated. Suffice it to say that the demurrer challenged the complainant's contention that the Act in question is invalid upon the grounds charged in the bill.

The Chancellor overruled the demurrer and in an excellent opinion, filed with the record, declared the said Act to be in violation of the Constitution. From this decree the defendants were granted an appeal to this Court, assigning the following errors:

(1) 'The Court erred in holding said Act to be in violation of Article XI, Sec. 17, of the Constitution.'

(2) 'The Court erred in holding said Act to be in violation of Article XI, Sec. 8 of the Constitution.'

The principal argument of appellant's counsel is that the Act does not create a county office, and that the changes made in the administration of county schools is not colorable. Numerous authorities are cited by counsel in support of these contentions, which we will now review.

The case of State ex rel. Llewellyn v. Knox County, 165 Tenn. 319, 324, 54 S.W.2d 973, 974, cited and relied on, is not controlling. The Act therein assailed merely provided for the appointment of a clerk to be employed by the County Judge and imposed upon him the 'duties of purchasing agent for the county'. The person so employed was not an official, but was acting as a paid employee of the county.

In Davis v. Williams, 158 Tenn. 34, 12 S.W.2d 532, the Act created the office of "Delinquent Poll Tax Collector", Priv.Acts 1927, c. 395, who was to be designated by the County Judge. It will be noted that the Act created an 'office' with a specified term of four years. Quoting from the opinion of Mr. Justice Swiggart, 158 Tenn. at page 39, 12 S.W.2d at page 532, '* * * the statute clothes the incumbent with all the attributes of an officer, as distinguished from a mere employee.'

The case of State ex rel. Harris v. Buck, 138 Tenn. 112, 196 S.W. 142, is not in point as supporting the first assignment of error. While Buck was elected by the county court as a qualified county engineer, and subject to reelection, he was held to be an employee. The office of engineer had not been created by the Legislature and no authority was conferred upon the County Court of Madison County to create such an office. The court could exercise only such authority as was conferred by the Legislature.

In the case of State ex rel. Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505, L.R.A.1916D, 951, the principal question raised was the right of Mayor Crump and other city officials to have a jury trial in an ouster proceeding, and whether a judgment of ouster would be effective to prevent them from holding a subsequent term of office to which they had been elected. It has no application here.

The case of Cross v. Fisher, 132 Tenn. 31, 177 S.W. 43, has no application to the case at bar. The Act there construed by the Court, Acts of 1913, was held valid in that it created no office; that the appointment of Supervisors 'whose duty shall be to assist county superintendents' did not create a county office. Now in the instant case the Director of Schools does not 'assist' anybody. On the contrary he performs all the duties which formerly devolved upon the County Superintendent of Schools.

The counsel cite and rely upon Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229, 234. This case dealt with the conflict of authority between the County Court and the Board of Commissioners of Shelby County, the latter office being created by a special Private Act of the Legislature. It was held (Lansden, J.) that 'the Legislature may take from the county court all power not conferred upon it by the Constitution' while the legislative power is only limited by Federal and State Constitutions. This opinion merely sustains Article XI, Section 17, that an office must be filled "by the people or the county court" and that appointees who have no fixed term or salary are not officers within the meaning of the Constitution. The Private Acts, Chapter 237, Acts of 1911, construed in this opinion, created a new form of county government for Shelby County. It transferred many of the administrative duties of the County Court to the new Commission. This was not a compelling reason for holding that said County Boards of Shelby County were public officers within the meaning of the Constitution.

In Dykes v. Hamilton County, 183 Tenn. 71, 191 S.W.2d 155, 156, the Private Act assailed created a 'Humane and Juvenile Court Commission' to act in conjunction with a Juvenile Court. The Commissioners were named in the statute. The commission was self-perpetuating in that in case of a vacancy other remaining Commissioners filled such vacancy. It was held that the Commission was not an office as follows: 'While the commission as a unit is an office, we are not impelled to reach the conclusion that it is a county office in the sense that vacancies must be filled by the people or the county court.' (Emphasis ours.) We think the Legislature intended to create a permanent agency to deal with delinquents and serve the Juvenile Court rather than to establish an office.

Turning now to consider the express provisions of the Act herein assailed. The Act abolishes the office of Superintendent of Public Instruction and establishes in its place and stead another with all the powers and authority of the former. His qualifications are those 'prescribed by law for a Superintendent of Public Instruction in Tennessee,' Sec. 2. While the term of office is described as indefinite, Sec. 2, we think it gives him a definite term in that he cannot be removed from office except by the Board after being given written notice of charges and a public hearing upon such charges. The Board is given the power to suspend him. As evidence that the position of Director of Schools is an office, and intended to be so construed, it is repeatedly referred to in the Act as an 'office'. Section 5 reads as follows:

'Be it further enacted, That the Director of schools shall be responsible for the efficient administration of the school system, and shall be vested with all the powers and rights and subject to all the duties and obligations in connection with the administration of the school system as are or may hereafter be provided by law for the County Superintendent of Public Instruction in other counties of the State, it being the purpose and intent of this Act to replace the office of County Superintendent of Public...