Robinson v. Briley

• Decision Date: 04 June 1963
• Citation: 374 S.W.2d 382,17 McCanless 418,213 Tenn. 418
• Parties: Garner ROBINSON, County Trustee, etc. v. C. Beverly BRILEY, Mayor Elect, etc., et al. 17 McCanless 418, 213 Tenn. 418, 374 S.W.2d 382
• Court: Tennessee Supreme Court

Page 382

374 S.W.2d 382

Garner ROBINSON, County Trustee, etc. v. C. Beverly BRILEY, Mayor Elect, etc., et al.

17 McCanless 418, 213 Tenn. 418, 374 S.W.2d 382

Supreme Court of Tennessee.

June 4, 1963.

Elkin Garfinkle, Nashville, for appellant.

Gilbert Merritt, Jr., Asst. Metropolitan Atty., Nashville, for appellees.

BURNETT, Chief Justice.

This cause originated by the filing of a bill in Chancery Court for a declaratory judgment in which the County Trustee questions the construction to be put on certain phases of the Metropolitan Charter as well as the constitutionality of certain provisions in the Metropolitan Charter.

The questions submitted are stated in the appellant's assignment of error and brief thus:

'No. I: Does the County Trustee retain and disburse funds collected by him as required by general law or is he required to remit daily to the Metropolitan Treasurer all taxes or tax equivalents as provided by the Charter?

'No. II: Does the County Trustee have the power to retain the fees accruing to his office, pay salaries and other expense and remit the surplus fees seemi-annually as required by general law or does the provision of the Metropolitan Charter requiring him to turn over taxes collected daily, include the fees accruing to his office?

'No. III: Has the County Trustee the power and authority to employ deputies and other employees as provided by general law or is his power limited to deputies only; and, is the employment of other employees delegated to others, as provided by the Charter?

'No. IV: Is the County Trustee compelled to take in his employ, persons transferred from the City of Nashville as provided by Section 20.06 of the Metropolitan Charter?

'No. V: If the placing of such employees not chosen by the Trustee is a legal requirement, is the County Trustee responsible for the actions of such persons or is his liability limited to those selected by him?'

After a thorough hearing and consideration of the matter the Chancellor in an excellent memorandum opinion resolved all of the issues in favor of the Metropolitan Charter and contrary to the position taken by the County Trustee. An appeal was prayed and seasonably perfected, briefs filed and able arguments have been heard. After considering the matter we now have it for disposition.

Much of the argument by the appellant in favor of the contentions above made were answered, at least in principle, in the case of Frazer v. Carr, 210 Tenn. 565, 360 S.W.2d 449, wherein the Charter was approved and the Acts creating it were held constitutional. Subsequent to this case, this Court in Winter v. Allen, Tenn., 367 S.W.2d 785, opinion released for publication on May 10, 1963, answers some of the questions above raised. In order not to repeat too much we in answering the assignments herein in this opinion will merely refer to those two cases for our reasons and conclusions or certain questions here presented.

As pointed out in the Carr case, the General Assembly pursuant to provisions of Article 11, Sec. 9, of the Tennessee Constitution passed a general law which is codified as Sec. 6-3701 et seq., T.C.A., authorizing consolidations. This general law, Sec. 6-3702, T.C.A., reads in part, as follows: '* * * after said consolidation no officer or agency of said county or of said municipal corporation shall retain any right, power, duty or obligation unless this chapter or the charter of the metropolitan government shall expressly so provide, or unless such retention and continuation be required by the Constitution of Tennessee.' Following this, Sec. 6-3711(p), T.C.A., requires that the Metropolitan Charter provide: 'For such administrative departments, agencies, boards and commissions as may be necessary and appropriate to perform the consolidated functions of city and county government in an efficient and coordinated manner and for this purpose for the alteration or abolition of existing city and county offices, departments, boards, commissions, agencies and functions, except where otherwise provided in this chapter or prohibited by the Constitution of Tennessee.'

Under this general act the duties of the County Trustee were altered to a certain extent. Some of the functions of the office, which County Trustees theretofore had done, were changed. Of course, prior to the creation of this Metropolitan Government the County Trustee was governed by a general law applicable to all counties in the State, and, as such, he was both the County Tax Collector and the Custodian of the County Funds. In other words he was the County Treasurer and the County Tax Collector. Some years ago the City of Nashville put into effect a different scheme of operation and had a different finance and accounting system separating the job of Controller, who collected taxes, from the job of the Treasurer, who was responsible for the custody and disbursement of all funds belonging to the City. Under this new Charter of the Metropolitan Government this last system, which had been formerly used by the City, was adopted. Under this new Charter the office of Metropolitan Treasurer is created (Sec. 8.106) and provides that the Treasurer, not the Trustee, is responsible for the custody and disbursements of funds coming into this new government. The duties of the Trustee are established by Sec. 8.116 of the Charter. Among other things this Section provides that the County Trustee shall be elected for a term of four years, as provided by the general law for Trustees generally; he shall be furnished with Deputies, personnel, materials and supplies, etc., that he may need for the functioning of this office. It also provides that the Deputies appointed by him as approved by the court as any other Deputies of any other Trustee shall have powers, duties, and liabilities as Trustee. It is also provided that all other employees of the Trustee, other than these Deputies, who are appointed and approved by the court, shall be employed according to Civil Service Regulations; and then it is provided in this same section that the Trustee shall collect and receive real and personal property taxes, merchants' ad valorem taxes, and everything else of that kind due the Metropolitan Government for General Services District and Urban Services District. Then follows one of the particular flies in the ointment as far as Trustee is concerned, and that is that he shall remit to the Metropolitan Treasurer daily in certain regards, and then his authority which is given under the general law is again conferred upon him except as otherwise provided by this Metropolitan Charter.

As said above this Charter and its provisions except as herein questioned have been passed upon in the Carr case, supra. It is the very able contention of the Trustee that the Constitution of Tennessee prevents the elimination of the Trustee's responsibility for the custody and disbursement of the Metropolitan Funds, and to his right to retain the fees of his office because these functions became embedded in our Constitution as they had functioned in North Carolina, since the Section of our Constitution was adopted from North Carolina, and that as a result of that fact the Constitution creating the office of County Trustee in Article 7, Sec. 1, has been violated. This argument was answered many years ago in the Anti-Fee Bill case of Hunter v. Connor, 152 Tenn. 258, 277 S.W. 71. Of...