Perry v. City of Elizabethton

• Decision Date: 23 December 1929
• Citation: 22 S.W.2d 359,160 Tenn. 102
• Parties: PERRY v. CITY OF ELIZABETHTON et al.
• Court: Tennessee Supreme Court

22 S.W.2d 359

160 Tenn. 102

PERRY v. CITY OF ELIZABETHTON et al.

Supreme Court of Tennessee.

December 23, 1929

Appeal from Chancery Court, Carter County; S.E. Miller, Judge.

Suit by J. T. Perry, as a taxpayer of the City of Elizabethton against such city, its mayor and councilmen, and others, in which the enumerated defendants filed a cross-bill against codefendants. From a decree dismissing the bill, complainant appeals. Appeal dismissed.

Cox & Taylor, of Johnson City, for appellant.

Campbell & Grindstaff, of Elizabethton, for appellee city.

Sells Simmonds & Bowman, of Johnson City, for other appellees.

SWIGGART J.

The original bill in this cause was filed by J. T. Perry, as a taxpayer of the city of Elizabethton, under the Declaratory Judgments Law, Acts 1923, chapter 29, for the purpose of testing the constitutionality of an act purporting to amend the charter of Elizabethton, Private Acts 1929, chapter 466.

The city of Elizabethton, its mayor and councilmen, the members of the county board of election commissioners, and the Attorney General and reporter of the state were named as the defendants to the bill. An answer was filed for the city, in which the mayor and one of the councilmen joined, admitting the unconstitutionality of the statute attacked, and an answer was filed by the members of the election commission disclaiming interest in the controversy. The complainant dismissed his suit against the defendant C. C. Hacker, member of the city council, but Hacker was permitted by the chancellor to file a demurrer to the original bill, as amicus curiæ. The Attorney General and reporter demurred to the bill.

The city of Elizabethton, and the mayor and councilman who joined with the city in its answer, filed a cross-bill, naming as defendants Councilman Hacker, the members of the election commission, and the Attorney General and reporter of the state, for a declaratory judgment that the act in question is unconstitutional and void. The cross-bill was dismissed as to Hacker, the members of the election commission answered, as above indicated, and the Attorney General and reporter demurred thereto.

The decree of the chancellor recites that the cause was heard upon the bill, the cross-bill, "and the demurrer thereto"; whereupon the chancellor decreed that the demurrer be sustained and that the bill and cross-bill be dismissed. A written opinion filed by the chancellor stated his conclusion that the statute attacked is constitutional and valid. From this decree both complainant and cross-complainant were granted an appeal to this court.

After the transcript was filed in the office of the clerk of this court, the city of Elizabethton dismissed its appeal, leaving the appeal pending only that of the original complainant, J T. Perry, who sues as a taxpayer.

It is stated on the brief filed for appellant in this court, with reference to the answer of the election commissioners disclaiming interest: ""Under the state of the pleading at that stage of the case there was no one contesting the questions raised in the original and cross-bills, except Dr. C. C. Hacker, who was an unnecessary party. Thereupon, the complainant, J. T. Perry, and cross-complainant, The City of Elizabethton, moved the court to dismiss the bill and cross-bill against Hacker, which motion was granted."

In Miller v. Miller, 149 Tenn. 463, 487, 261 S.W. 965, 972, wherein the constitutionality of the Declaratory Judgments Law was sustained, this court held that the jurisdiction of a court may be invoked under the statute, to determine a question which is real and not merely theoretical, but that "the person raising it must have a real interest, and there must be some one having a real interest in the question who may oppose the declaration sought."

In Cummings v. Shipp, 156 Tenn. 595, 597, 3 S.W.2d 1062, 1063, this court said: "While jurisdiction under the Declaratory Judgments Act is not dependent upon any right of the parties to immediate consequential relief, it is necessary, in order to confer jurisdiction, that the proceeding be instituted by a party with real interest in the subject-matter and against the party whose interest is adverse."

The absence of real interest in the complainant, seeking declaratory relief, and the absence of proper adverse...