Kyle v. Marcom

• Decision Date: 08 January 1944
• Citation: 178 S.W.2d 618,181 Tenn. 57
• Parties: KYLE et al. v. MARCOM et al. BROWN et al. v. KYLE et al.
• Court: Tennessee Supreme Court

178 S.W.2d 618

181 Tenn. 57

KYLE et al. v. MARCOM et al.

BROWN et al. v. KYLE et al.

Supreme Court of Tennessee.

January 8, 1944

Appeal from Chancery Court, Clay County; A. F. Officer, Chancellor.

Suit in equity by M. J. Kyle and others against W. A. Marcom and others, challenging the constitutionality of Priv.Acts 1943 cc. 54, 219, which repealed an act under which complainants held office as Clay County Highway Commissioners, and appointed defendants as Highway Commissioners. Separate suit by Charlie Brown and others, as taxpayers, against M. J. Kyle and others, to enjoin defendants from acting as Highway Commissioners, and for other relief. The chancellor in the first case overruled and, in the second case, sustained a demurrer to the respective bills, and defendants in the first case and complainants in the second case appeal. The cases were consolidated and heard together in the Supreme Court.

Decree modified, and cases remanded.

Tony Maxey, of Celina, and Tyree B. Harris, III and Walker & Hooker, all of Nashville, for appellants.

J. H Reneau and J. H. Reneau, Jr., both of Celina, and Lewis S Pope, of Nashville, for appellees.

GAILOR Justice.

The complainants, M. J. Kyle et al., in the first of the above cases, filed their bill in the Chancery Court of Clay County, Tennessee, alleging that complainants were: (1) The duly elected Highway Commissioners of Clay County by reason of their election in the general election in August 1942, and (2) that they were taxpayers of Clay County, Tennessee.

They filed this bill against the defendants, W. A. Marcom, Lester Brown, D. E. Birdwell, Frank Brown, and C. E. Clark, as the old, or former members of the Clay County Highway Commission, and against other named defendants as the sureties on the official bonds of the defendants named. It was alleged in the bill that defendants, W. A. Marcom et al., were undertaking to qualify and act as Highway Commissioners under Chapter 296 of the Private Acts of 1941, and that said Act was unconstitutional, and in the first aspect of the bill, the complainants prayed that said Act be declared unconstitutional; that they be confirmed in their office as Highway Commissioners and that the defendants be enjoined from interfering with them in the exercise of their official duties as such Commissioners. In the second aspect of the bill, the complainants, as taxpayers, prayed that defendants and their sureties be required to account and settle for public monies alleged to have been illegally withdrawn and expended by them. A preliminary injunction was granted, and prayed, upon the filing of the bill. Thereafter, a motion to dissolve said injunction was denied by the Chancellor and to this action the defendants preserved an exception. The defendants also filed a plea in abatement, the general tenor of which was an insistence that the complainants had no right to file or maintain the original bill. The plea in abatement is a part of the record, but has never been disposed of by the Chancellor, and is therefore not before us here.

This was the status of the litigation until February 13, 1943, at which time, on leave granted, the complainants filed an amended and supplemental bill in which they renewed many of the allegations of the original bill as to their right to the office, but further charged that the Legislature at its 1943 Session, had passed Chapters 54 and 219 of the Private Acts of 1943; that by the first of these Acts, Chapter 698 of the Private Acts of 1937, under which the complainants held office, was repealed, and by the second of these Acts, Chapter 219, a new system for the administration of highways in Clay County was set up and the defendants, Marcom et al., were named as the first Highway Commissioners thereunder to serve until the general election in 1944. In their amended and supplemental bill, complainants alleged that these two Acts were to be construed together and that there was no real or material change in the administration of highways for Clay County made by these Acts, but that said changes were entirely colorable, and the whole intent and purpose of the legislation was to oust the complainants from their offices and to install the defendants therein. To this amended and supplemental bill, the defendants demurred on several grounds and upon the motion to dispose of said demurrer, the Chancellor held that the two Private Acts of the 1943 Legislature, Chapters 54 and 219, were unconstitutional, as alleged in said amended supplemental bill, and he therefore overruled the demurrer. To this action of the Chancellor, the defendants excepted and prayed an appeal, which was allowed by the Chancellor, and it is on this appeal that the litigation is now before this court.

The second bill, Charlie Brown et al., v. M. J. Kyle et al., was filed after the overruling of the demurrer in the case of Kyle et al. v. Marcom et al. The complainants in this latter suit were certain taxpayers of Clay County, and as such, they sued the defendants Kyle et al. (who were complainants in the other suit) alleging that defendants were undertaking to act as Highway Commissioners of said county wrongfully and illegally and in contravention of the provisions of Chapters 54 and 219 of the Private Acts of 1943. They further demanded on accounting and settlement of public monies alleged to have been wrongfully appropriated and expended by said defendants and prayed an injunction to restrain them from further action as such Highway Commissioners. A demurrer to this bill was sustained by the Chancellor and from this action of the Chancellor, an appeal had been perfected. It was agreed at the time of the argument of this case before this court that the two cases herein should be consolidated and heard together and that the determination of the questions raised by the first case would be a determination of the matters involved in the second.

In the first case of Kyle et al. v. Marcom et al., both parties have made assignments of error and we shall dispose first of the assignment of error made by the complainants Marcom et al., which is in substance as follows:

That the Chancellor erred in permitting an appeal upon his decree overruling the demurrer; that said appeal is premature and that it is not a final decree against any of the parties since there is still a cause of action pending under the original bill which is not disposed of as to any of the defendants.

Section 9038 of the Code, under which the Chancellor permitted the appeal, is as follows: 'The chancellor or circuit judge may, in his discretion, allow an appeal from his decree in equity causes determining the principles involved and ordering an account or a sale or partition, before the account is taken or the sale or partition is made; or be may allow such appeal on overruling a demurrer; or he may allow any party to appeal from a decree which settles his right, although the case may not be disposed of as to others.' (Emphasis ours.)

It is to be noted that the Chancellor may allow an appeal 'from a decree overruling a demurrer' without condition or limitation, and he may allow any party to appeal from a decree which settles his right, although the rights of others may remain unsettled.

The Chancellor, by the decree overruling the demurrer, finally disposed of the issue between complainants and defendants, as to who were the lawful Highway Commissioners of Clay County. We think the foregoing section of the Code was clear authority for the action of the Chancellor and that the appeal was not prematurely granted or taken. In Sigler v. Vaughn, 11 Lea 131, 79 Tenn. 131, 133, 134, the same section of the Code was construed as follows: 'However we may construe the latter clause, whether as regarding a final decree on the merits, or a settlement of rights at any other stage, yet as to the right of the chancellor to allow an appeal from overruling a demurrer, there is no qualification or limitation whatever. It is the right of the party, whose demurrer has been overruled, to ask, and within the discretion of the chancellor to grant the appeal.' (Emphasis ours.)

Never, so far as our examination discloses, has this holding of the Supreme Court been modified, and it was without express citation, affirmed in an opinion by Justice Chambliss in the case of Cory v. Olmstead, 154 Tenn. 513, 516, 290 S.W. 31.

Clearly we have before us an equity cause and an appeal from a decree overruling a demurrer which is sufficient to justify the action of the Chancellor in permitting the appeal. However, we think it was further justified under the final clause of section 9038 of the Code. The original bill was filed in dual aspect, but the amended and supplemental bill was filed against the defendants merely as Highway Commissioners to prevent their occupation of that office or the discharge of its duties. In the second aspect of the original bill (but not in the amended and supplemental bill) complainants sued as taxpayers, the defendants were named as old or former Highway Commissioners, together with the sureties on their official bonds as such, and in this phase of the bill, complainants sought an accounting and settlement for public monies alleged to have been wrongfully used by defendants.

The only question raised on the first aspect of the original bill and on the amended and supplemental bill, was the constitutionality of certain Acts of the Legislature and the determination of this question would dispose finally of the rights of complainants and defendants as Highway Commissioners and determine finally which group was to be declared the lawful Highway Commissioners and which was therefore entitled to a decree confirming them in their offices. Consequently, when the Chancellor overruled...