Roberts v. Roane County

• Decision Date: 23 December 1929
• Citation: 23 S.W.2d 239,160 Tenn. 109
• Parties: ROBERTS v. ROANE COUNTY et al.
• Court: Tennessee Supreme Court

23 S.W.2d 239

160 Tenn. 109

ROBERTS v. ROANE COUNTY et al.

Supreme Court of Tennessee.

December 23, 1929

Appeal from Chancery Court, Roane County; J. H. Wallace, Judge.

Suit by W. W. Roberts against Roane County and others, in which defendant county filed a cross-bill. From the decree complainant appeals. Decree in accordance with opinion.

H. M Carr and D. O. Harris, both of Harriman, and O. T. Tindell of Kingston, for appellant.

Haggard & Wright, J. R. Tedder, and John F. McNutt, all of Rockwood, for appellees.

SWIGGART J.

The complainant and appellant, W. W. Roberts, was elected to the office of sheriff of Roane county at the August election 1924, for the term beginning on the first Monday of September, 1924. He was prevented from qualifying and from assuming the duties of the office by the action of the county judge of Roane county, who refused to induct him into office because of an alleged constitutional and statutory disqualification. Complainant's right to the office was subsequently determined by litigation, and he was inducted into office on August 3, 1925, after a lapse of 11 months and 3 days of the term to which he was elected.

The present suit was brought by complainant against the county, and against the county judge and the sureties on his official bond, to recover from the county a salary due him for the time he was prevented from serving as sheriff, together with the jail fees and other fees of office of which he had been deprived, and to recover from the county judge and his sureties the damages sustained by complainant because of the alleged wrongful act of the county judge in refusing to induct him into office.

The salary claimed by complainant is that fixed for the sheriff of a county of a designated population by chapter 24 of the Private Acts of 1923. The salary authorized by this statute was paid to the complainant during the latter half of his term, and Roane county filed its cross-bill to recover from complainant the amount so paid to him, upon averments that this statute is unconstitutional, and therefore constituted no authority for the agents of the county to pay, nor for the complainant to receive, any such salary from the funds of the county.

All questions of fact were eliminated from the cause by pleadings and agreements, except the amount which the sheriff was entitled to collect from the county as the profit he would have earned as jailer from the boarding of prisoners during the time he was kept out of office, measured by the difference between the amount allowed by law and the cost to the jailer of the prisoners' board. As to this, the county demanded a jury, and the jury found that it would have cost complainant the statutory allowance to provide board for the prisoners.

The chancellor held the salary statute of 1923, chapter 24 of the Private Acts for that year, unconstitutional, denied complainant's right to salary under the act, and awarded the county, as cross-complainant, a decree for the amount paid to complainant while serving the last half of his term. The chancellor awarded complainant a decree for the turnkey fees which he would have earned, and as to which there is no controversy. Complainant was denied any right to recover ex officio compensation, on the ground that no such compensation was ever voted by the quarterly county court by proper resolution. Following the verdict of the jury, no recovery was awarded complainant for the denial of his right to board the prisoners of the county.

The cause is here on the appeal of the original complainant, and by proper assignments of error we are asked to review (1) the holding of the chancellor as to the constitutionality of the salary statute of 1923; (2) the holding that the county is entitled to recover from complainant the amount paid to him under the statute, even if the statute be unconstitutional; and (3) the holding that complainant is not entitled to recover ex officio compensation. A fourth question is made upon complainant's motion for a new trial on the question of the cost of boarding prisoners.

The four propositions for decision, above stated, are urged by complainant against Roane county. It is also assigned as error that the chancellor failed to hold the county judge, individually, and the sureties on his official bond, liable to complainant for all money damages resulting to him from the fact that he was wrongfully deprived of his office by the county judge for a period of 11 months and 3 days.

It is not questioned but that the county judge was acting officially and as agent of the county in his refusal to induct the complainant into office. No effort is now made by the county to repudiate this action of its agent, and the right of the complainant to recover from the county the fees and salary to which he would have been entitled if he had been inducted into office at the beginning of his term is not questioned, but is conceded upon the authority of reported cases. Graham v. England, 154 Tenn. 435, 443, 288 S.W. 728; and cases there cited; Hogan v. Hamilton County, 132 Tenn. 554, 179 S.W. 128.

It results, therefore, that the complainant has the same right to demand and receive from Roane county the compensation, fees, and salary attached by law to the office of sheriff which he would have had if he had been inducted into office at the beginning of his term, and no financial loss to him was caused by the action of the county judge in refusing to induct him into office. This being true, we think the chancellor was correct in dismissing complainant's bill, in so far as it sought a recovery against the county judge and his bondsmen.

Chapter 24 of the Private Acts of 1923 has for its caption:

"An act to regulate and provide for the compensation of sheriffs in the counties of this state having a population of not more than 24,650 nor less than 24,624, according to the federal census of 1920."

The body of the act makes it applicable to the counties of the population designated in the caption, "according to the federal census of 1920, or any subsequent census," and provides that in such counties the sheriff shall receive as compensation the sum of $2,000, payable quarterly out of the county treasury, upon warrant of the county judge as chairman, and in addition, shall have all the fees, commissions, and emoluments of the office of sheriff.

The amended answer of the defendants to the original bill charges that this statute of 1923, is unconstitutional, as in violation of section 8, article 1 of the Constitution of the state, "for the reason that it imposes burdens, duties and obligations, and creates distinctions and classifications for and against citizens and taxpayers in certain counties in Tennessee not imposed upon citizens and taxpayers in other counties in said state, nor upon the community at large."

The answer otherwise charges that the statute is unconstitutional, as in violation of section 17 of article 2 and section 8 of article 11 of the Constitution of the state, for the reason that the body of the act is broader than its caption. The decree of the chancellor declared the statute unconstitutional and void, as in violation of the Constitution "in the respects set forth by defendants in their answers and amended answers in the case, especially article 2, section 17, and article 11, section 8, of the Constitution of Tennessee."

The caption describes the act as one limited to counties of a designated population according to the federal census of 1920, while the body of the act extends its application to counties which may come within the designated population classification by any subsequent federal census. The body of the act embraces counties, in the future application of the statute, which are excluded by the language of the caption. There can, therefore, be no doubt but that the body of the act, as it is written, is broader than the caption, and contains a provision which is not only not expressed in the caption, but which is clearly excluded thereby.

It is ably argued by learned counsel for complainant that this formal defect in the statute should be avoided by construction, and that, in order to effectuate the legislative intent, the words "or any subsequent federal census" should be read into the caption. An alternative insistence is that the words "or any subsequent federal census" be read out of the body of the act. By either process the body and caption would be made to conform to each other. For this contention complainant cites Southern Railway Co. v. Rowland, 152 Tenn. 243, 276 S.W. 638, Ashby v. State, 124 Tenn. 684, 139 S.W. 872, Riggins v. Tyler, 134 Tenn. 577, 184 S.W. 860, Wise & Co. v. Morgan, 101 Tenn. 273, 48 S.W. 971, 44 L. R. A. 548, Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 33 L. R. A. 589, and other cases.

It is contended for the defendants that the language of the statute, in both body and caption, is unambiguous and susceptible of only one interpretation, and that it cannot be saved by construction. Exum v. Griffis Newbern Co., 144 Tenn. 239, 246, 247, 230 S.W. 601; Knoxville Power & Light Co. v. Thompson, 152 Tenn. 223, 276 S.W. 1050.

Complainant particularly urges as authority for his contention the opinion of this court in Southern Railway Co. v. Rowland supra, wherein the restricting language of the caption of an act was, by construction, read into the body of the act. The effect in that case was to limit the application of the act to the subject particularly expressed in the caption. Obviously the reverse procedure, that is, reading into a caption of an act language which would extend its application, is not authorized by the opinion in that case. Such a procedure would nullify the constitutional requirement that the members of the Legislature...