Kimsey v. Hyatt

• Decision Date: 27 January 1936
• Citation: 89 S.W.2d 887,169 Tenn. 599
• Parties: KIMSEY ET AL. v. HYATT ET AL. (TWO CASES).
• Court: Tennessee Supreme Court

89 S.W.2d 887

169 Tenn. 599

KIMSEY ET AL. v. HYATT ET AL. (TWO CASES).

Supreme Court of Tennessee.

January 27, 1936

Appeal from Chancery Court, Polk County; T. L. Stewart, Chancellor.

Two separate suits by L. E. Kimsey and others against G. Parks Hyatt and others. Decrees for complainants, and defendants appeal.

Reversed and dismissed.

J. E Adams, of Copperhill, and Williams & Williams, of Chattanooga, for appellants.

Paul R Stewart, of Athens, and R. P. Taylor, of Copperhill, for appellees.

DE HAVEN, Justice.

The General Assembly of the state of Tennessee in 1931 enacted chapter 104 of the Private Acts of that year appointing L.

E Kimsey, J. E. Quinn, and J. L. Lanning township school commissioners for the Fourth fractional township of Polk county, to hold office until the first Monday in November 1934, or until their successors were duly elected and qualified. The act provided for an election to be held on said date for township school commissioners, to hold office for the term of four years. J. L. Lanning resigned his office of township school commissioner, and the remaining two commissioners, on September 10, 1934, undertook to elect R. L. Kirkpatrick in his place and stead. There was no election held on the first Monday in November, 1934, or since that date, for the selection of township school commissioners.

Chapter 128 of the Private Acts of 1935 abolished the offices of school commissioners for said township. Within a few days after the enactment of chapter 128, the General Assembly passed chapter 188, Private Acts of 1935, creating the offices of school commissioners for said township and naming G. Parks Hyatt, Joe E. Williams, and William J. Rogers as such commissioners.

L. E. Kimsey, J. E. Quinn, and R. L. Kirkpatrick, on February 21, 1935, filed their original bill to restrain Hyatt, Williams, and Rogers from interfering with complainants as township school commissioners, or with their custody, control, and possession of the funds, records, and other properties held by them in their official capacity, and to require C. L. Campbell, trustee of Polk county, to recognize complainants as such commissioners. It was averred in the bill that said acts of 1935, under which Hyatt, Williams, and Rogers were claiming said offices, are unconstitutional, for the reason that said acts are colorable only, effected no fundamental changes in the structure of the offices, and that the intent and purpose of the acts is manifestly to legislate complainants out of office and, in turn, legislate said defendants into office.

The chancellor granted the injunction as prayed. Defendants demurred to the bill on the ground, among others, that complainants were without right to challenge the validity of said acts, for the reason that they had a vested right in said offices only up to the first Monday in November, 1934, and after that date held office only by grace or sufferance. The chancellor overruled the demurrer, and held both of said acts to be unconstitutional and void. From this decree defendants have appealed to this court and assigned errors.

After the entry of the decree in the above-mentioned case, the General Assembly enacted chapter 138, Private Acts of 1935, 1st Extra Session, which act by its terms required complainants to vacate the offices of township school commissioners and naming defendants Hyatt, Williams, and Rogers as such commissioners.

Complainants, on August 5, 1935, filed their bill against defendants attacking the constitutionality of said act as colorable legislation, and praying for an injunction to restrain said three defendants from interfering with them as such commissioners. The chancellor granted the injunction, as prayed. Defendants demurred to the bill on the ground, among others, that complainants in their bill make out no such case as entitled them to the relief sought. The chancellor overruled the demurrer, and held said act unconstitutional. From this decree defendants have appealed to this court and assigned errors.

Complainants aver in both bills that they are "the duly elected Township Commissioners of the Fourth Fractional Township of Polk County, Tennessee, having been elected and qualified under the terms of chapter 44 of the Acts of 1889 of the General Assembly of the State of Tennessee, as from time to time amended." Said act of 1889 provided, among other things, for the election of three township commissioners, to hold office for the term of two years from the date of their election, and, in case a vacancy occurred by death, removal, or otherwise, the same to be filled by appointment made by the other commissioners.

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