Cummings v. Beeler

• Decision Date: 10 October 1949
• Citation: 223 S.W.2d 913,189 Tenn. 151
• Parties: CUMMINGS, Secretary of State, et al. v. BEELER, Attorney General, et al.
• Court: Tennessee Supreme Court

223 S.W.2d 913

189 Tenn. 151

CUMMINGS, Secretary of State, et al. v. BEELER, Attorney General, et al.

Supreme Court of Tennessee.

October 10, 1949

Suit by James H. Cummings, Secretary of State, and another against Roy H. Beeler, Attorney General, and others for a judgment declaring the constitutionality of Public Acts 1949, c. 49 and the rights, status, duties and obligations of the parties thereunder.

The Chancery Court of Davidson County, Thomas A. Shriver Chancellor, entered a decree holding the statute constitutional and defendants appealed.

The Supreme Court, Burnett, J., held that a justiciable controversy cognizable under the Declaratory Judgment Act was presented and that statute submitting to voters the question whether a constitutional convention should be held with limited power to propose amendments to specified sections of the Constitution is valid and affirmed the decree.

William F. Barry, Solicitor General, Nashville Allison B. Humphreys, Jr., and Harry Phillips, Assistant Attorneys General, for appellants, Beeler and Hunt.

John A Pritchett, Nashville, for appellant Election Com'rs.

William L. Frierson, Chattanooga, W. Raymond Denney and Cecil Sims, Nashville, for appellees.

BURNETT Justice.

This suit was initiated by the Secretary of State of the State of Tennessee in his official capacity and by a citizen and taxpayer of the State against the Attorney General of the State of Tennessee and the Comptroller of the State of Tennessee and the Election Commission of Davidson County, Tennessee.

The purpose of the suit was to have the Court declare the rights, status, duties and obligations and other legal relations of the parties as affected by Chapter 49 of the Public Acts of 1949. The bill further averred that the Statute is constitutional and asked that the Court so declare.

The defendants filed a joint demurrer asserting that no justiciable controversy existed between the parties under the averments of the bill. After argument was heard and the matter was considered by the chancellor, he held that the bill stated a justiciable controversy and that the parties defendant were before the Court and accordingly overruled the demurrer. Thereafter the defendants Attorney General and Comptroller filed a joint answer, and the defendants, Election Commissioners jointly filed a separate answer. The cause was then heard on bill and answer. The Attorney General and the Comptroller raise the same question which they had raised in their demurrer, that is, that the bill did not present a justiciable issue. Election Commissioners admit a justiciable issue is made by the bill. They say also that there is indeed grave doubt as to whether or not the Act in question is constitutional. They ask that the chancellor pass on this question. The chancellor declared the Act constitutional; that the bill presented a justiciable issue and that correct parties defendant were before the court.

The Attorney General and Comptroller have prayed a special appeal to this Court and have assigned error raising the single question of whether or not the bill presents a justiciable controversy under our Declaratory Judgments Act. The Election Commissioners prayed a broad appeal to this Court. They say that question which the Attorney General and Comptroller have raised was correctly decided by the chancellor.

The Attorney General and Comptroller, by their appeal, say three questions are involved, namely:

'1. Does this case present a justiciable controversy between adversary parties?

'2. Can a declaratory judgment properly be entered when the real question involved is premature and contingent and may never arise in the future?

'3. Are the parties to this suit entitled to a declaratory judgment?'

The Board of Election Commissioners of Davidson County assign error to the holding of the chancellor that the Act in question is constitutional.

We must first see what is necessary to make a justiciable controversy, in any particular proceeding, under the Declaratory Judgment Law (Section 8835 et seq., of the Code of Tennessee) before passing to the question presented, that is, whether or not the allegations of the bill herein and the parties thereto are sufficient for the bill to be filed under this Act. This Court in Miller v. Miller, 149 Tenn. 463, 261 S.W. 965, 972 in construing the Declaratory Judgments Act said: 'It follows, therefore, from the foregoing authorities, that the only controversy necessary to invoke the action of the court and have it to declare rights under our declaratory judgments statute is that the question must be real, and not theoretical; the person raising it must have a real interest, and there must be some one having a real interest in the question who may oppose the declaration sought. It is not necessary that any breach should be first committed, any right invaded, or wrong done. The purpose of the act, as expressed in section 12 thereof, is to 'settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.''

We have frequently held that the jurisdiction to render a declaratory judgment is discretionary. Tennessee Eastern Electric Co. v. Hannah, Commissioner, 157 Tenn. 582, 12 S.W.2d 372; 16 Am. Jur., page 287.

Does the present controversy or proceeding present such an issue as to bring this case within the requirements of the Declaratory Judgments Act as above outlined? We think that it does. In the first place the controversy as presented in these proceedings is real and not theoretical. The legislature has passed the Act heretofore referred to (Chapter 49 of the Public Acts of 1949) in which the Secretary of State is required to spend large sums of money in holding a special election on November 8, 1949. This is real, not theoretical. The Attorney General, who is the official interpretor of the laws for the Secretary of State and the defendant Comptroller, has declared in an official opinion concerning similar legislation proposed prior to the Act in question that legislation of the kind would be illegal, void and unconstitutional. In his demurrer and likewise in his answer in the instant case, even though he does not rely upon this fact, the Attorney General states that he has not changed his mind.

The Election Commissioners, who are parties defendant to this suit have certain specific duties to perform under the Act. They allege in their answer that there are serious doubts as to the validity of Chapter 49 of the Public Acts of 1949 and that these doubts were greatly strengthened by the published opinion of the Attorney General of Tennessee, rendered prior to the passage of the Act in question.

It seems to us that the question is not merely a theoretical question. We have an Act of the legislature mandatorily requiring a State official to spend public funds to hold a special election on November 8, 1949.

The Secretary of State is required to spend this State money. He must either obey the mandatory provisions of this law which the Attorney General has previously publicly declared as unconstitutional or he must disregard the law entirely. If the Secretary of State decides to follow the mandates of the statute and spend the public funds and then it develops that the Attorney General was correct in his opinion in holding that the law was invalid and unconstitutional, the Secretary of State would have spent public funds under the authority of a law which was illegal and without effect. This expenditure would have been made in face of the declared official opinion of his official legal adviser that the law was invalid and unconstitutional. It would therefore clearly appear that the Secretary of State has a real interest, officially, in determining whether or not the legislation is valid before spending these public funds.

In Miller v. Miller, supra, this Court said: 'There must be some one having a real interest in the question who may oppose the declaration sought.'

Code section 8845 prescribes who are necessary parties to a declaratory judgment proceeding. In this Code section the Attorney General of the State is required to be 'served with a copy of the proceeding' when the constitutionality of an act is attacked. We have construed this section to require the Attorney General to be a party defendant in any proceeding where the constitutionality of the Act of the legislature is before the Court on declaratory judgments proceeding. Buena Vista Special School District v. Board of Election Com'rs of Carroll County, 173 Tenn. 198, 116 S.W.2d 1008.

The complainants in their bill are seeking a declaration as to the validity of the Act in question. The Attorney General has ruled that like legislation would be invalid and unconstitutional. The Secretary of State is required to spend large funds out of the State Treasury if the Act is constitutional. On the other hand, if the Act is invalid then he has no right to spend these funds. By the pleadings herein, both the Attorney General and the Comptroller of the State of Tennessee apparently take the position that they are not concerned with whether or not the Secretary of State expends these funds. It is the duty of the Comptroller of the State to '* * * To draw warrants upon the treasury for the sums which, upon such examination and adjustment, may be found due from the state, specifying in each warrant the date of its issue, the name of the person to whom payable, the nature of the claim for the payment of which the warrant is issued, the statute or authority under which the warrant issued.' Code section 201. Many of the duties of the Attorney General are set forth in Code section 9956. Among other things therein required of him...