Hicks v. Rhea County

• Citation: 189 Tenn. 383,225 S.W.2d 544,25 Beeler 383
• Parties: , 189 Tenn. 383 HICKS et al. v. RHEA COUNTY et al.
• Decision Date: 17 December 1949
• Court: Supreme Court of Tennessee

Page 544

225 S.W.2d 544

25 Beeler 383, 189 Tenn. 383

HICKS et al. v. RHEA COUNTY et al.

Supreme Court of Tennessee.

Dec. 17, 1949.

O. W. McKenzie, Dayton, for appellant.

C. P. Swafford and Walter H. Cheers, Dayton, for appellee.

GAILOR, Justice.

The appellants, referred to hereinafter as complainants, filed this action as an Injunction Bill against Rhea County, the County Trustee, and the three members of the Purchasing and Finance Commission, alleging that Chapter 317 of the Private Acts of 1949, by which the Commission was created, was unconstitutional and void. The complainants sued only as property owners and taxpayers, and their rights to make the assault on the Act are limited to their rights as such under well-established rules. Patton v. City of Chattanoogs, 108 Tenn. 197, 65 S.W. 414; Richardson v. Young, 122 Tenn. 471, 522, 125 S.W. 664; Donathan et al. v. McMinn Co., 187 Tenn. 220, 227, 213 S.W.2d 173.

'No one has the right to attack a particular provision in a statute as unconstitutional unless it affects him adversely. This court has said, when an Act is void under the one-subject clause of the Constitution, 'anyone against whom such an act is sought to be enforced may attack it on that ground, and if successful he will be relieved of whatever burden the statute in any of its parts seems to impose on him.' State v. Cumberland Club, 136 Tenn. 84, 101, 188 S.W. 583, 587.' Cheatham County v. Murff, 176 Tenn. 93, 105, 138 S.W.2d 430, 434.

The defendants met the bill with a demurrer coupled with an answer. The complainants made a motion to dismiss the demurrer, alleging that by filing the answer the defendants had waived their rights to rely on the grounds of their demurrer. The Chancellor, after writing and filing a lucid and well-considered opinion which has come up with the record, overruled the first ground of the demurrer, which was a denial of the right of the complainants to file the bill, sustained all other grounds of the demurrer and dismissed the bill. Limiting their exception to the action of the Chancellor in sustaining the demurrer, the complainants have perfected their appeal.

The first assignment of error is to the action of the Chancellor in overruling the motion of complainants to dismiss the demurrer. The record shows no timely objection by complainants to the action of the Chancellor in overruling the motion, and their right to review was thereby waived. The action of the Chancellor is not properly before us for review. Rule 14(5), 185 Tenn. 868. When no exception was taken and preserved from the Chancellor's ruling, his action became the law of the case. Tennessee Eastern Elec. Co. v. Hannah, 157 Tenn. 582, 12 S.W.2d 372. The assignment is accordingly overruled.

By the second, third and fifteenth assignments of error complainants assert that the Chancellor erred in not holding the Act invalid as violating Art. II, sec. 17, of the Constitution. All of these assignments are bad and fail to comply with Rule 14(2), 185 Tenn. 867. The assignments make no specification of how the rights of the complainants, as citizens and taxpayers, are prejudiced and give no reference to the pages of the record where the ruling of the court complained of, is contained. They undertake to combine assignments of error with brief of authorities and argument, all which make it impossible for us to consider them seriatim. Apparently, the substance of the assignments is that (1) the Act is broader than its caption, and (2) that it contains two subjects.

The caption of the Act is as follows:

'An Act to reorganize the fiscal affairs of Rhea County by granting to the County Court certain powers therewith, by creating a Finance and Purchasing Commission, a Budget Committee, a Highway Supervisory Committee, and prescribing the powers, duty and authority of each and by repealing the existing budget law for said county and prescribing penalties for the violation of this Act.'

So the broad purpose of the Act is stated to be, 'To reorganize the fiscal affairs of Rhea County'. The word 'fiscal' used here as an adjective, is synonymous with 'financial,' and is here correctly used to imply further public, as distinguished from private finances and revenues. The succeeding clauses and phrases of the caption, after the expression of its general purpose,--'By granting to the County Courts certain powers, etc.' though elaborating and explaining that general purpose, do not limit or restrict it. Hanyes v. Sanford et al., 185 Tenn. 576, 206 S.W.2d 796. So long as the body of the Act does not contain two or more subjects of legislation antagonistic and repugnant, and so long as the body of the Act does not contain some hidden incongruity not germane to the purpose stated in the caption, the constitutional provision is not violated. Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 291 et seq. In a great many Tennessee cases, this interpretation and construction of Art. II, sec. 17, of the Constitution has been approved since the decision of Cannon v. Mathes, decided two years after the Constitution of 1870 was approved. The case is reported in 55 Tenn. 504, and Nicholson, C. J., stated the rule for construing Art. II, sec. 17, which has ever since been followed:

'It is obvious, therefore, that the true rule of the construction, as fully established by the authorities, is, that any provision of the act, directly or indirectly relating to the subject expressed in the title, and having a natural connection thereto, and not foreign thereto, should be held to be embraced in it.' Cannon v. Mathes, 55 Tenn. 504, 523.

In the assignments attacking the caption, the complainants devote much argument to the idea that whereas the purpose of the Act is expressed to be the creation of a commission, that in the body of the Act, administrative functions are imposed directly upon the County Court. Not only are these administrative powers given to the County Court, 'congruous' and 'germane' to the phrase in the caption,--'By granting to the County court certain powers', but a hair-line distinction between 'political' and 'administrative' power has never been possible in our system of government. House v. Creveling, 147 Tenn. 589, 597, 250 S.W. 357.

A careful study of the Act, which contains 12 sections, and is much too long to copy at length in this opinion, convinces us that there is nothing in the body of the Act which is not congruous and germane to the stated purpose of the caption which was to re-organize the fiscal affairs (financial administration) of Rhea County. Accordingly, assignments two, three and fifteen are overruled.

The defendants conceded that that part of section 2 of the Act in which the individual defendants, Abel, Hinch and Arnold, were appointed as the first members of the Purchasing and Finance Commission, was unconstitutional and in violation of Art. 11, section 17. The Chancellor so held, but he held further that in view of the very explicit and complete 'saving and rescue' clause in the Act, that that part of section 2, by which the individuals were appointed, could be and should be elided; that after that elision there was full and detailed direction for the election of Commissioners by the County Court and that the Act was complete and effective without the detail of invalidity. By assignments of error four and fourteen, the complainants insist that this holding of the Chancellor was erroneous.

With the objectionable portion elided, section 2 of the Act provides, that there is created for Rhea County a Purchasing and Finance Commission; that the Commission shall be composed of three members at least 30 years of age, five years residence in the county, and five years general business experience; the members of the Commission shall be elected by the County Court, that their terms of office shall be so staggered that one member of the Commission shall be elected each year for a maximum term of three years, that each member shall take an oath to faithfully perform his duties and serve the public interest and file said oath with the County Court; that vacancies occurring in membership of the Commission shall be filled at the next meeting of the County Court and that the County Court shall make the election to commence the next August 31, at each July term, for that member who is regularly elected annually. That the compenstion of the members of the Commission will be paid by the County Court out of the general funds of the County in an amount not to exceed $300 per year for each member. Clearly, therefore, the Act could be elided as directed by the Chancellor, without impairing its completeness nor affecting the purpose for which it was passed by the Legislature.

To support these assignments the complainants cite the case of Cheatham County v. Murff, 176 Tenn. 93, 138 S.W.2d 430. It is difficult for us to see the purpose of that citation, since that authority fully supports the action of the Chancellor:

'The fifth assignment of error is directed to a provision of the Act which the chancellor held bad and elided. There was no appeal from the action of the chancellor and we think that he was obviously correct. The particular provision was easily severable. By this provision an individual named was designated to hold the office of road supervisor from the passage of the Act until September...