Miller v. Washington County

• Decision Date: 31 December 1920
• Parties: MILLER ET AL. v. WASHINGTON COUNTY ET AL.
• Court: Tennessee Supreme Court

226 S.W. 199

143 Tenn. 488

MILLER ET AL. v. WASHINGTON COUNTY ET AL.

Supreme Court of Tennessee.

December 31, 1920

Appeal from Chancery Court, Washington County; Hal H. Haynes Chancellor.

Suit by S.E. Miller and others against Washington County and others. From the decree defendants appeal, and plaintiffs bring cross-appeal. Affirmed.

HALL J.

The bill in this cause was filed by the complainants, S.E Miller, Harr &amp Burrow, and Sam W. Price, members of the Washington county bar, against Washington county and the members of the Washington County Good Roads Commission, both in their official and individual capacities, seeking to recover the sum of $15,000, alleged to be due the complainants as the reasonable value of their legal services rendered the defendants in the case of State of Tennessee ex rel. J. W Cox et al. v. G. C. Horn et al., which was a bill filed in the chancery court of Washington county by the Washington County Good Roads Commission to compel, by writ of mandamus, the chairman and clerk, respectively, of the county court of Washington county to issue, sign, and countersign $750,000 of interest bearing coupon bonds of said county, the issuance of which had been authorized by the qualified voters of said county in an election held under chapters 25 and 131 of the Private Acts of 1917. These acts authorized and empowered Washington county to lay off, construct and build a system of highways in said county with the proceeds of the bonds to be issued. The acts created a commission, composed of five members, to be known as the "Washington County Good Roads Commission," and provided that the members of this commission should be elected at the same time and in the same election held for the purpose of voting on the proposition to issue the bonds authorized by said acts. The acts expressly clothed the commissioners to be elected with authority to contract for the construction and improvement of said roads, and to do any and all things necessary to carry out the purposes of said acts.

The defendant road commissioners in the instant cause were elected commissioners at said election, and after due qualification entered upon their duties as such.

It was further enacted that each of the bonds issued should be signed by the chairman of the county court, and countersigned by the county court clerk, with the official seal of the latter attached thereto.

It was further enacted that not less than 95 per cent. of the fund derived from the proceeds of the sale of the bonds should be expended in the actual construction on contractors' estimates, and not more than 5 per cent. of said fund should be expended for expenses of any kind or character.

Both the chairman and clerk of the county court refused to sign and countersign said bonds, being of the opinion that said acts were unconstitutional, on account of which the institution of the mandamus proceeding was made necessary.

The mandamus suit was sharply and vigorously contested, both in the chancery court and in this court, and resulted in the constitutionality of said acts being upheld, and in the chairman and clerk of the county court being required to sign and countersign said bonds, after which a sale of them was negotiated and consummated by said commissioners. In that litigation the road commissioners, by resolution duly passed, employed complainants to represent them in the mandamus proceeding, and complainants did represent them in said proceeding, both in the chancery court and in this court, and it is to recover for these services that the present bill was filed.

To complainants' bill the defendants filed a demurrer. By this demurrer it was insisted: (1) That Washington county could not be held liable, for the reason that the bill did not show that Washington county, as a county, authorized the employment of the complainants, and the commission was without authority to bind the county; and (2), that the Washington County Good Roads Commission, as a commission, could not be held liable, because the act under which it was created did not vest it with authority to employ counsel to represent it in said litigation, and it was therefore without authority to expend any portion of the money derived from the sale of said bonds in the payment of attorney's fees; and (3), that the Washington County Good Roads Commission, as individuals, could not be held liable for the fees of complainants, for the reason that any action taken by them was as officials and not as individuals, and in the absence of a showing of bad faith upon their part no individual liability could attach.

The chancellor sustained the third ground of said demurrer, holding that the commissioners were not individually liable, but, if liable at all, they were only liable in their official capacity. The other grounds of the demurrer were overruled.

Whereupon the defendants answered the bill, denying that either the county or the commissioners were liable to the complainants in the sum of $15,000.

The answer averred that at the time the complainants were employed by the road commissioners to institute said mandamus suit in the chancery court of Washington county, the question of what fees the complainants should have for their services was discussed, and that it was agreed between complainants and said road commissioners that it should be left absolutely to said commissioners to fix the fees which complainants should receive after the litigation had been terminated, and that the commissioners met pursuant to said agreement, and, after due consideration of the matter, determined that a fee of $1,500 would be reasonable compensation for the complainants' services rendered in said suit, and had offered to pay complainants this sum as full compensation for their services, but that complainants had refused to accept the same, and that defendants, if liable at all, were not liable for a greater sum than $1,500.

In their answer they demanded a jury to try and determine the issue of fact presented.

A motion was seasonably made by defendants to have the chancellor transfer the cause to the circuit court of the county for trial by a jury under the provisions of chapter 90 of the Public Acts of 1919. This motion was overruled by the chancellor, to which action the defendants excepted.

The cause was thereafter finally heard by the chancellor upon the pleadings and proof, and he held that the complainants were entitled to recover of the road commissioners, as such, the sum of $4,500, as the reasonable value of their services rendered in the mandamus suit, both in the lower court and in the Supreme Court, and ordered said sum to be paid out of the 5 per cent. of the proceeds of said bonds which the acts provided might be used by the commissioners in the payment of any and all expenses which might accrue in carrying out the purposes of the acts.

From this decree and the decree overruling their demurrer the defendants prayed and perfected an appeal to this court, and have assigned errors.

Complainants appealed from so much of said decree as fixed the reasonable value of their services at only $4,500, and have assigned errors on this phase of the cause.

We will first dispose of the assignments of error filed by the defendants, the first of which is that the chancellor erred in not sustaining the second ground of their demurrer, and in not holding that the Washington County Good Roads Commission was without authority to employ counsel to represent them in said mandamus proceeding filed in the chancery court of Washington county, because the act under which said commission was created did not confer any such authority upon it.

We are of the opinion that this assignment of error is not well taken. While the act did not expressly vest in the commission the power to institute suits necessary in carrying out the purposes of the act and to employ counsel in such suits, it did expressly clothe said commission with the power and authority to do all things necessary to carry out the purposes of said act, and we think the power to employ counsel and institute any suit that might be necessary to enable them to accomplish the purposes of the act is a necessary incident to the powers expressly conferred upon the commission. The commission created by said act to carry out its purposes will be treated as a quasi public corporation, and was not therefore restricted to the exercise of powers expressly conferred upon it by the act creating it, but was clothed with such implied powers as were necessary to carry out the powers expressly granted, and to accomplish the purposes for which it was created. R. C. L. vol. 7, § 513.

While a corporation is a creature of statute, it is true that some things by common law are incident to it, which it may do without any express provision in the charter of incorporation; such as to sue and be sued, etc. The extent of its powers are those enumerated in its charter, or implied by fair and natural construction of powers expressly conferred. Jonesboro v. McKee, 2 Yerg. 167-170; Mallory v. Hanaur Oil Works, 86 Tenn. 598, 8 S.W. 396; Union Bank v. Jacobs, 6 Humph. 515-521.

It is next insisted that, even if the road commission, as a necessary incident to the powers expressly conferred upon it were authorized to institute an action of mandamus to compel the chairman and clerk of the county court to sign and countersign...