Lindsay v. Allen

• Decision Date: 02 July 1904
• Citation: 82 S.W. 171,112 Tenn. 637
• Parties: LINDSAY et al. v. ALLEN et al.
• Court: Tennessee Supreme Court

82 S.W. 171

112 Tenn. 637

LINDSAY et al. v. ALLEN et al.

Supreme Court of Tennessee.

July 2, 1904

Appeal from and Error to Chancery Court, Campbell County; Hugh G Kyle, Chancellor.

Suit by J. S. Lindsay and others against William Allen and others. From the decree, complainants appeal, and defendants bring error. Reversed.

Agee & Peters, Lucky, Sanford & Fowler, R. P. Haggard, and Wright & Wright, for complainants. Powers & Owens, Templeton, Lindsay & Templeton, and L. H. Carlock, for defendants.

NEIL J.

The bill in the present case was filed to enjoin the removal of the county seat of Campbell county from Jacksboro to La Follette. Sundry grounds were stated in the bill as reasons why such removal could not be lawfully had. To this bill 11 demurrers were interposed.

The case was heard before the chancellor at chambers on the 18th day of January, 1904, under the authority conferred by chapter 248, p. 577, of the Acts of 1903, and he sustained the first, second, third, and fourth grounds of demurrer, and dismissed the bill as to the portions thereof to which the said four grounds applied.

He also sustained the ninth ground of demurrer. He overruled the fifth, sixth, seventh, eighth, tenth, and eleventh grounds. However, he adjudged that, inasmuch as the ninth ground went to the whole bill, the bill should be dismissed, and accordingly it was dismissed, and the injunction dissolved, and a decree entered against the complainants and their surety on the prosecution bond for all of the costs, and an inquiry of damages awarded on the injunction bond.

The complainants prayed, and were granted, an appeal from so much of the decree as sustained the first, second, third, fourth and ninth grounds of demurrer, and from so much of the decree as ordered the bill to be dismissed and the injunction dissolved, and as taxed the complainants with the costs of the cause, and as awarded a reference for damages against the complainants on the injunction bond.

No appeal was prayed by the defendants from the action of the chancellor in overruling the remaining grounds of demurrer. The defendants have attempted to bring these matters before the court by writ of error, but no provision is made in the statute for such a proceeding. Section 4 of the act reads "If any of the parties are dissatisfied with any of the decrees entered under the provisions of this act, and the chancellor in the exercise of his discretion permits an appeal therefrom, they shall have the same right of appeal as if the cause was heard in term time: provided, that said appeal be prayed for at the time the decree is rendered by the chancellor, and the said chancellor shall have the right to allow the appellant such time as he thinks best, not to exceed thirty days, in which to perfect said appeal by giving bond or otherwise complying with the terms of the decree. Such order granting the appeal shall be endorsed by the chancellor as are other orders, and shall in like manner be transmitted to and entered by the clerk and master: provided, further, that in appeals prayed and granted at chambers the rule as to bills of exceptions shall be in no wise different from the rules in force during term time." Page 578.

There is no other method provided in the statute for bringing the case to this court for revision of the chancellor's decree so rendered at chambers. The method of appeal must therefore be held exclusive of all others.

It is assumed by the defendants, as we suppose, that the general provisions of the Code in respect of writs of error sued out upon decrees and judgments rendered in term time would apply. This, however, is an incorrect assumption. The proceedings authorized by the Legislature, under chapter 248, supra, are peculiar, and cannot be extended by construction. The remedy there given by appeal is ample. If either party fail to avail himself of it, he must be held to have waived all objections that could have been remedied by the appeal.

It results that we have not before us the fifth, sixth, seventh, eighth, tenth, and eleventh grounds of demurrer, and they cannot be further noticed.

We now take up the first, second, third, fourth, and ninth grounds of demurrer, in the order named.

The first ground of demurrer presents the point that chapter 103, p. 138, of the Acts of 1873, is not void, and that so much of the bill as is based upon the assumption that the said act is void is bad on its face.

This ground of demurrer is well taken.

Section 6 of the act referred to reads as follows:

"Sec. 6. Be it further enacted that the county seat shall not be removed to any place unless a vote is cast for the removal to said place equal to two-thirds of the vote cast in the next preceding Governor's election."

This section is void, because in violation of art. 10, § 4, of the Constitution, which provides: "Nor shall the seat of justice of any county be removed without the concurrence of two-thirds of the qualified voters of the county."

The unconstitutionality of the aforesaid sixth section, however, does not nullify the rest of the act. The rule upon this subject is thus accurately stated in the fourth headnote to Jones v. Memphis, 101 Tenn. 188, 47 S.W. 138, viz.: "Where a single statute, or several statutes constituting one scheme, contain one or more unconstitutional provisions, the obnoxious provisions will be eliminated, and the statute or scheme sustained as to the rest, unless the provisions are deemed so essential, and are so interwoven with others, that it cannot be reasonably presumed the Legislature intended the statute to operate otherwise than as a whole, and, in that event, the entire statute or scheme falls." 101 Tenn. 188, 189, 47 S.W. 138.

The statute in question can well stand without the sixth section, inasmuch as the Constitution takes the place of that section. We cannot doubt that the Legislature would still have passed the remaining provisions, even if its attention had been drawn to the unconstitutionality of the sixth section. Bouldin v. Lockhart, 3 Baxt. 262.

The second ground of demurrer presents the point that the election was advertised for March 28, 1903, and the Dortch law, under the terms of the act putting Campbell county under that law, was not passed until March 26, 1903, only two days prior to the time fixed for the election, and hence there was not time to put the machinery of that law into operation, and it did not apply to that particular election. We think this view is correct. The point made falls within the principle of Davis v. Rogersville, 107 Tenn. 588, 64 S.W. 893. The second ground of demurrer is therefore sustained.

The third ground of demurrer is based upon the following portions of section 4, art. 10, of the Constitution of 1870, viz.: "Where an old county is reduced for the purpose of forming a new one, the seat of justice in said old county shall not be removed without the concurrence of two-thirds of both branches of the Legislature, nor shall the seat of justice of any county be removed without the concurrence of two-thirds of the qualified voters of the county." In 1849 a portion of Campbell county was taken off when Scott county was formed, and in 1850 another portion was taken off when Union county was formed. Campbell county has not been reduced since the Constitution of 1870 went into effect. The demurrer in question presents the point that the language above quoted from the Constitution, in respect of the reducing of the size of counties and the concurrence of the Legislature in the removal, applies only to such counties as may be reduced in size subsequent to the going into effect of the Constitution of 1870, and not to the counties reduced before that time. We think this construction is the correct one. When the whole paragraph is read, out of which we have taken the above excerpt, it clearly appears that the Constitution speaks to the future, and not of the past. It is said: "No part of a county shall be taken off," etc., and, "where an old county is reduced, for the purpose of forming a new one," etc., "but the foregoing provision requiring a two-thirds majority *** shall not apply to the counties of Obion and Cocke." It is clear that the word "is" is used in the sense of "shall" or "may be."

This ground of demurrer must therefore be sustained.

This likewise disposes of the fourth ground of demurrer.

The ninth ground of demurrer presents the point that the complainants in the present case are bound by the fact that J. M. Sharp and others had, as citizens and taxpayers, filed a former bill for the same purpose, and had dismissed it.

The defendants have filed a copy of the decree which was entered in the former cause. This, however, is not a part of the bill, and we cannot look to it. In disposing of the demurrer, we can look only to the face of the bill.

Looking, then, to the face of the bill, there are only two constructions possible. One of these is that the complainants in the former suit dismissed the bill merely upon their own motion, and the defendants agreed to pay the costs. The second is that the complainants in that bill and the defendants thereto entered into a contract to the effect that the complainants would dismiss the bill in consideration of an agreement on the part of defendants to assume and pay the costs of the cause, and that this contract was carried out; the bill being dismissed with complainants' consent, and the defendants thereto agreeing to pay, and actually paying, the costs.

As to the first construction, we need consider this no further than to say that it has been held, and the settled rule in this state is, that a mere voluntary dismissal on the part of the complainant will not prevent the bringing of a new suit upon the same subject-matter by...