Hickman v. Wright
| Decision Date | 08 March 1919 |
| Citation | 210 S.W. 447,141 Tenn. 412 |
| Parties | HICKMAN, COUNTY JUDGE, v. WRIGHT, SHERIFF. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Davidson County; J. D. B. De Bow, Judge.
Suit between Litton Hickman, County Judge, and Joe W. Wright Sheriff. Judgment for the latter, and the former brings error. Affirmed.
This suit involves the constitutionality of chapter 47 of the Acts of 1917, known as the "anti-fee bill."
The lower court held the act to be unconstitutional, and the case has been brought to this court by appeal.
The caption and the first two sections of the act are as follows:
"An act to be entitled, 'An act fixing the salaries of certain county officials in the state, to wit: The several clerks and masters of the chancery courts, clerks of the various county and probate, circuit, criminal and special courts, county trustee, register of deeds and sheriffs; to provide for the disposition of the fees of their offices to fix the salaries of said offices and to provide for the payment thereof; to provide for the appointment and removal of deputies and assistants of said officers and to prescribe the manner of fixing their salaries and the payment thereof, and to provide for the payment of the expenses of the offices, and to provide punishment for the violation of certain provisions of this act, and otherwise regulate the rights, duties and liabilities of the said officers, and to provide for a system of auditing for said offices.'
Section 1. Be it enacted by the General Assembly of the state of Tennessee, that the clerks and masters of the various chancery courts, the clerks of the various circuit, county and probate, criminal and special courts, county trustees registers of deeds, and sheriffs throughout the state shall be deprived of all their fees, commissions, emoluments and perquisites that shall hereafter accrue, or be received by virtue of their respective offices; and they shall be compensated for their services by salaries alone as hereinafter provided, the same to be payable as hereinafter provided, which salaries shall be in lieu of all other compensations, provided that nothing in this act shall be construed to apply or refer to any fees, commissions, emoluments or perquisites in which said officers shall have a vested right at the time this act goes into effect.
Sec. 2. Be it further enacted, that for the purposes of determining the salaries to be received by the various officers mentioned in section 1 of this act, the several counties of the state, except counties having a population under 30,000 according to the federal census of 1910, or any subsequent federal census, are hereby divided into classes as follows: Counties having a population of not less than 190,000 shall constitute counties of the first class.
Counties having a population of not more than 190,000, and not less than 140,000, shall constitute counties of the second class.
Counties having a population of not more than 140,000, and not less than 85,000, shall constitute counties of the third class.
Counties having a population of not more than 85,000, and not less than 37,500 shall constitute counties of the fourth class.
Counties having a population of not more than 37,500, and not less than 30,000 shall constitute counties of the fifth class, and provided that the population of the several counties for the purpose of this act, shall be determined by the federal census of 1910 and by each succeeding federal census."
The third section fixes the salaries of the various officials in the five classes of counties enumerated in the second section.
It is admitted that the counties contained in said five classes are as follows: First class, Shelby; second class, Davidson; third class, Hamilton and Knox; fourth class, Gibson, Madison, and Maury; and fifth class, Fayette, Giles, Green, Montgomery, Rutherford and Weakley--making a total of 13 counties, while there are 83 counties that are not classified, and for whose officials no compensation, either as salaries or fees, is provided.
It is insisted by the appellee that the caption and section 1 of the act declare in plain language an intent to deprive the county officials in all counties throughout the state of all fees, emoluments, etc., thereafter received by them, and that all such offices should thereafter be compensated by salaries alone, which would be fixed by the provisions of the act, but that the act failed to carry out this purpose and plan, and overlooked providing such salaries for officials of the counties having a population of less than 30,000.
On the other hand, it is insisted by the plaintiff in error that it was the intention of the Legislature to limit the act to officials in counties having a population of 30,000 or over; that is to say, that the words "throughout the state," contained in section 1 of the act, followed by the words "as hereinafter provided," had reference to those officials "throughout the state" in the counties of 30,000 in population or over as thereinafter provided.
The act is not susceptible to this latter construction. The language is plain, unambiguous, and uncontradictory. The caption of the act says:
"An act fixing the salaries of certain county officials in the state, to wit: The several clerks and masters of the chancery courts, clerks of the various county and probate, circuit, criminal and special courts," etc.
There is nothing in the language used to suggest that the deprivation of fees was only applicable to officials in the 13 counties composing the five classes, or that salaries were to be paid only to such officials within said 13 counties. And the same is true of section 1 of the act, which says:
"That the clerks and masters of the various chancery courts," etc., "throughout the state shall be deprived of all their fees, commissions," etc., "and they shall be compensated for their services by salaries alone as hereinafter provided."
Webster's International Dictionary defines the word "throughout" to mean "from one extremity to the other of; in every part of." The meaning of this part of the act is that all the clerks, trustees, sheriffs, etc., in the entire state, are deprived of their fees, etc.
This construction is strengthened by the fact that section 1 of the acts of 1917 is almost a verbatim copy of section 1 of chapter 124 of the Acts of 1897, known as the "Estes fee bill." In this latter act we know that, in using the identical language as that used in the act under consideration, the Legislature intended to deprive such officials in all of the counties in the state of their fees, etc., for, in a subsequent part of the act, they provided salaries for all such officials, and when the Legislature used this language in the act of 1917, they evidently intended the language used to bear the same construction as was intended by the language used in the act of 1897.
It is apparent, therefore, that the Legislature intended to deprive all state officials, enumerated in the act, of their fees, and to put them on a salary basis; but, for some unexplained reason, they overlooked fixing salaries for such officials in the 83 counties having a population of less than 30,000. Such an oversight is termed in law a "casus omissus."
A pure "casus omissus" occurring in a statute can never be supplied or relieved against by the court under any rule or canon of construction or interpretation. Lewis' Sutherland, Statutory Construction (2d Ed.) vol. 2, §§ 605, 606; 11 Corpus Juris, p. 31, note 69; 26 Am. & Eng. Ency. of Law (2d Ed.) p. 601; Kelly v. State, 123 Tenn. 516, 132 S.W. 193; State ex rel. Board, etc., of Benton County v. Boice, 140 Ind. 506, 39 N.E. 64, 40 N.E. 113.
The foregoing conclusion is not in conflict with our liberal rules of construction and interpretation of statutes. The universal rule seems to be that if the actual language and provisions of the statute are plain and clear, and are devoid of contradiction or any affirmative ambiguity, so that the statute, as the result of the express provisions, is not reasonably susceptible of a twofold meaning, then there is no room for applying any other rules or canon of...
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