Malone v. Williams
| Citation | 103 S.W. 798 |
| Parties | MALONE et al. v. WILLIAMS et al. |
| Decision Date | 22 June 1907 |
| Court | Tennessee Supreme Court |
G. T. Fitzhugh, T. K. Riddick, T. B. Turley, and John E. Bell, for appellants. E. E. Wright, R. E. Maiden, and Thomas M. Scuggs, for appellees.
The bill in this case was filed by certain persons who were elected as officers of the city of Memphis under its charter as it existed prior to March 27, 1907, against certain other persons claiming to be officers of the same city by appointment of the Governor under an act passed on the date last mentioned.
The purpose of the bill was to have the above-mentioned act of March 27, 1907 (Senate Bill No. 289), declared unconstitutional and void.
It is alleged that the act referred to was first introduced as an independent act, imposing upon the city of Memphis a new charter, and that this act bore the following title:
"An act to grant a new charter to the city of Memphis, to repeal an act entitled `An act to establish taxing districts in the state, and to provide the means of local government for the same, and being chapter 11 of the Acts of 1879, and all the acts amendatory thereof, constituting the charter of the city of Memphis, and to repeal chapter 54 of the Acts of 1905, entitled `A bill to be entitled "An act to amend an act entitled `An act to establish taxing districts in this state and to provide the means of local government for the same,'"' the same being chapter 11 of the Acts of 1879 and all the acts amendatory thereof, constituting the charter of the city of Memphis."
It is further alleged that at the time the bill bearing the above caption was introduced there was pending in the Legislature a bill known as the "Pendleton Bill," with every prospect of the latter passing and becoming a law; that the result of passing the new charter as an independent act, the Pendleton bill becoming a law in the meantime or thereafter, would be to prohibit the sale of intoxicating liquors in the city of Memphis, and that in order to avoid this result the bill as originally introduced was withdrawn by the parties in charge of the legislation, and a new bill — that is, Bill No. 289 — was introduced, purporting in its caption to be an amendment of the former act, rather than a new and independent one. A copy of the bill, the title of which is above given, as first introduced, was exhibited with the complainants' bill in equity in the present case, and on comparison it appears to be substantially the same as the act of March 27, 1907 (Senate Bill No. 289), under examination herein.
It is alleged that, notwithstanding the caption of the act of March 27, 1907, purporting an amendment of the former charter of Memphis, the body of the bill shows a new and independent scheme of legislation covering the whole subject, and thereby, if good, effecting an implied repeal of the former charter; and therefore that, while the caption of the act purports an amendment, its body purports a repeal, and hence the caption and the body are in conflict, article 2, § 17, of the Constitution of the state is thereby violated, and the act is void.
It is further alleged that the act is void because several special matters embraced in the body of it are not covered by the title, and for these reasons it is in violation of article 2, § 17. These special matters need not be set out at this point, but will be presently referred to with more particularity.
It is alleged that, "if the said defendants are permitted to carry out their unlawful purpose of the government of the said city, complainants will be deprived of the benefits and emoluments of the offices to which they have been justly elected and which they are lawfully entitled to hold and enjoy until the expiration of their respective terms"; that they are legally required to hold their various offices until the expiration of their terms, and their successors are duly elected and qualified; that "they will suffer irreparable injury on account of the illegal acts of the defendants, unless said defendants are restrained by the court, and they have no adequate remedy at law."
These allegations were made, following other allegations to the effect that the defendants were threatening to take charge of the city government under the act of March 27, 1907, and would take charge of it unless restrained.
The bill was filed by James H. Malone, mayor of the city, and B. H. Henning, a member of the board of fire and police commissioners, George C. Love, a member of the board of public works and chairman of that board, J. S. Dunscomb, R. A. Utley, E. H. Crump, and Frank H. Hill, members of the board of public works, and A. C. Floyd, judge of the city court; and it was alleged that under the charter of the city as it existed prior to the act of March 27, 1907, the term of each of these officers ran until January 11, 1910, except that of George C. Love, which latter expired in January, 1908.
The bill was filed against the following persons, all appointed by the Governor, pursuant to the terms of the said act of March 27, 1907, viz.: J. J. Williams, John T. Walsh, David S. Rice, E. B. Le Master, and Sidney M. Neely, members of the commission provided for in the said act, J. J. Williams having been appointed president, John T. Walsh vice president, and the defendants David S. Rice, E. B. Le Master, and Sidney M. Neely members of the said commission, and the defendant George G. Alban, appointed judge of the court designated in the act as the "Corporation Court."
The bill alleged that these defendants were about to take charge of the city government, thereby ousting the complainants; that said contemplated act was wrongful and would result in great confusion in the affairs of the city.
There was a prayer for process against the defendants, and for a temporary injunction against interference with the city government until the matter could be heard by the chancellor, and that on final hearing the injunction be made perpetual.
The bill was filed April 24, 1907, and on the same day a temporary restraining order was issued against the defendants. On the 26th of the same month the chancellor heard the application for a temporary injunction, and disallowed it on May 4th, and on that day he vacated the temporary restraining order.
On the 6th of May the defendants filed a demurrer to the bill, assigning numerous grounds, all of which are embraced in the first one, which is that there is no equity in the bill. On the same day the chancellor sustained the demurrer and dismissed the bill. From this decree the complainants prayed and obtained an appeal to this court and have here assigned errors.
The errors assigned are as follows:
"The chancellor erred (1) in not declaring the act in question unconstitutional because it repeals the former charter of the city of Memphis, while purporting in the caption only the amendment of it; (2) in holding that the act in question was only an amendment to the former charter, and not a new charter for the city of Memphis; (3) in holding that the Legislature had the power to remove municipal officers without abolishing their offices; (4) in holding that the act in question is in all respects constitutional, and in denying complainants the relief prayed for."
The assignments present, from different points of view, the single question whether the act of March 27, 1907, is uncontitutional in whole or in part; but the solution of this general question requires the consideration and disposition of many particular contentions advanced by the parties. We shall not take up these controversies in the order in which they are presented in the assignment of errors or in the briefs of counsel, but in that order which seems to us the most convenient.
It is alleged in the bill that the act of March 27, 1907, violates the Constitution in the following particulars, viz.:
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