Prescott v. Duncan

• Decision Date: 20 June 1912
• Citation: 148 S.W. 229
• Parties: PRESCOTT et al. v. DUNCAN et al.
• Court: Tennessee Supreme Court

Page 229

148 S.W. 229

PRESCOTT et al. v. DUNCAN et al.

Supreme Court of Tennessee.

June 20, 1912.

Appeal from Chancery Court, Shelby County; Francis Fentress, Chancellor.

Action by H. P. Prescott and others against J. B. Duncan and others. From the decree, complainants appeal. Affirmed.

Fitzhugh & Biggs and G. J. McSpadden, for complainants. Caruthers Ewing, Wright & Wright, W. A. Percy, and R. Lee Bartels, for defendants.

LANSDEN, J.

The complainants Prescott and Powell are members of the board of turnpike commissioners of Shelby county, and the complainant Fletcher is bookkeeper of the board upon a salary, and as such and as taxpayers and citizens they file this bill in the Second chancery court at Memphis to impeach chapter 237 of the Acts of 1911 as unconstitutional and void. The defendants, John B. Duncan, Hayden M. McKay, and E. W. Hale, are members of the Shelby county commission created by the act assailed. It is alleged that the complainants were forcibly deprived of their office by the defendants who have usurped the functions and duties of the board of workhouse commissioners, board of turnpike commissioners, the county board of health, and the board of poorhouse commissioners of Shelby county, as well as the duties and functions of the county court of said county, and that they are proceeding to make contracts for the county and to expend under the act assailed large sums of money to the detriment of the complainants and other taxpayers of the county. The bill was demurred to; the demurrer raising the question that the act under which the defendants are claiming office and proceeding to do the things charged in the bill is a valid and constitutional enactment. The case was heard before the Honorable Francis Fentress, chancellor of Division No. 2 in whose court the bill was filed, and the Honorable F. H. Heiskell, chancellor of Division No. 1, sitting together, who, in separate written opinions, held the act to be constitutional. From this decree, the complainants have appealed and assigned errors.

The first error assigned is that the act in substance takes away from the county court practically all of its functions as the administrative agency of the county, and especially as to turnpikes, the workhouse, the county health, the poor, and the poorhouse commissioners, the election of county officers, including the workhouse commissioners, turnpike commission, members of the board of health, and members of the poorhouse commission, election of the subordinate officers of the county, purchasing of county supplies, and the control of the county finances, control of the county buildings, including the courthouse, the control of the dirt roads of the county worked by convicts, including repairing and building county turnpikes, the approval of the bonds of the county officers, the making and signing of contracts for the county, and for county purchases and disbursements of county revenue, which includes substantially all of the duties and functions of the county court, except the levying of taxes, electing a coroner and ranger, and filling the vacancies in county offices in certain contingencies provided by the Constitution and not covered by the act.

The second assignment is that the act is unconstitutional because it authorizes county officers created by the Legislature to be elected by the commissioners, thereby violating section 17 of article 11 of the Constitution which provides that "no county office created by the Legislature shall be filled, otherwise than by the people or the county court."

The title of the act in question is:

"An act to create a board of county commissioners in counties having a population of 190,000 or more according to the federal census of 1910, or any subsequent federal census; to provide for their election, qualification and removal; and to prescribe their duties and fix their compensation."

The act is too voluminous to be set out in full in this opinion, and the following synopsis of its contents is taken from the brief of counsel for complainants:

"The first section of the act creates a board of county commissioners, provides for their first election, and fixes their term of office.

"The second section provides for the qualification of the board of commissioners; that two of said commissioners shall at the time of their election reside out of the corporate limits of the county seat, while the other members may be a resident within the corporate limits of the county seat, that no member of the county court shall be eligible as a member of the commission.

"The third section vests the board of commissioners with all the powers and duties now vested in or imposed upon the workhouse commission, turnpike commission, county board of health and the poorhouse commission.

"The fourth section abolishes the above-mentioned commissions and boards and vests the duties of the same in the board of commissioners. * * *

"The seventh section divides the work of the board into three departments, to wit:

"(1) The department of workhouse and turnpike roads.

"(2) The department of county health.

"(3) The department of purchasing and finance.

"The eighth section vests in the board the authority to appoint or elect:

"(a) Jail physician or county health officer.

"(b) Superintendent of county morgue.

"(c) Superintendent of emergency hospital.

"(d) Physician in charge of the poor and insane asylum and workhouse.

"(e) Jail engineer.

"(f) Courthouse janitor.

"(g) Courthouse engineer.

"(h) Courthouse electrician.

"(i) Courthouse policeman.

"(j) Night watchman, and

"(k) `Such subordinate help as may be necessary in order to properly conduct the affairs of the county which are under this act committed to their supervision and charge.'

"`The board of commissioners is likewise authorized to fix the compensation of the officers enumerated, as well as the subordinate help, but as to the enumerated officers a maximum salary per annum is provided by this section. The board is given authority to remove any officer at any time, without cause, or, as expressed in the act, at their "will and pleasure."'

"This section also authorizes the payment of salaries by warrants drawn on the county trustee, signed by the chairman and secretary of the commission. It is then provided that `none of said officers shall be paid or receive, directly or indirectly, any further or greater compensation than that above provided. Living in dwellings provided by the county or the commissioners shall not be treated as receiving additional compensation.'

"Section 9 makes it a felony for any of the commissioners or officers, or any subordinate officer or employé of the commission, to accept directly or indirectly any moneys other than that stipulated for performing the duties of the office.

"Section 10 provides that no commissioner or officer named, or any subordinate or regular employé of the commission shall be connected with any contract with the county or commission, and that a violation of the same shall be a felony.

"Section 11 provides that no contract shall be awarded by the board of commissioners to any person who shall be related in the third degree to any one of the commissioners.

"Section 12 defines the duties of the chairman of the commission and charges him with the purchasing of all supplies for the various departments, gives to him special care and custody of the courthouse and all employés, as well as the books of the commission, and the title of `commissioner of purchasing and finance.'

"Section 13 makes it the duty of the commissioner of county health to have charge of the health department of the county, the poor, and the insane asylum, the county morgue, the emergency hospital, the health of the prisoners in the county jail, and the special supervision of all employés in the health department.

"Section 14 gives to the other commissioner the title `commissioner of the department of workhouse and turnpike roads' and devolves upon him general supervision over the dirt roads of the county worked by the convicts, the building and repairing of all turnpikes, the full charge of all employés in the department, and requires of him all duties now required of the workhouse superintendent and the superintendent of turnpikes.

"Section 15 provides for the assignment of the commissioners to the respective departments.

"Section 16 applies to vacancies occurring in the board of commissioners, and vests the remaining commissioners with power to elect a commissioner to fill such vacancy `who shall hold office during the unexpired term.' In the event of a tie vote, it is provided that the duties of the vacant office shall be imposed upon and discharged by the other commissioners. * * *

"Section 18 provides that `every officer' authorized to be elected by the board of commissioners shall be nominated by the commissioner in whose department such officer belongs, and that no such officer shall be elected by the board except on such nomination by such commissioner. It further provides that if the commissioner shall fail for 30 days to nominate such officer, then any member of the board shall have a right to make a nomination, but limits the right of the board as far as an election is concerned to the nomination so made.

"Section 19 authorizes the commissioners to fix the amount of bonds and method of approval required `of all elective, appointed, or subordinate officers,' and that such bonds must be made by a surety company doing business in the state and county.

"Section 20 denies to any commissioner during the term for which he is elected or appointed to accept any other office under the county, or state, or municipality. * * *

"Section 25 makes it a misdemeanor for any candidate for the office of commissioner to directly or indirectly give or promise any person or persons any office, profit, or anything of value for the purpose of influencing or obtaining the political influence, aid, or...