Smiddy v. City of Memphis

• Decision Date: 18 May 1918
• Citation: 203 S.W. 512,140 Tenn. 97
• Parties: SMIDDY v. CITY OF MEMPHIS ET AL.
• Court: Tennessee Supreme Court

203 S.W. 512

140 Tenn. 97

SMIDDY v. CITY OF MEMPHIS ET AL.

Supreme Court of Tennessee.

May 18, 1918

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Suit by John T. Smiddy against the City of Memphis and others. Decree for plaintiff, and defendants appeal. Affirmed.

H. J Livingston, of Memphis, for appellants.

I. H Peres and R. E. King, both of Memphis, for appellee.

LANSDEN J.

This suit was brought by complainant to recover from the city of Memphis a balance alleged to be due as salary as a member of the fire department. The suit is intended as a test case and, while the amount claimed by complainant is small, the total amount due, or alleged to be due, those within complainant's class is $7,500.

Prior to the passage of the act hereafter mentioned, complainant was receiving a salary of $100 per month as a member of the fire department of the city of Memphis. By an act of the Legislature passed April 3 and approved April 6, 1917, the city of Memphis was mandatorially directed to pay complainant an increase of salary of 12 per cent. from and after the passage of the act. Complainant and others appeared before the city council, and sought to have the increase put into effect by a proper action upon the part of the government, which up to that time had failed and refused to do so. The city government did not agree to put the increase in force, but did agree to take the matter under consideration. Complainant did not agree to any postponement of action upon the part of the city, but nothing more was done about the matter at the time. The complainant continued to receive his salary at the rate of $100 monthly until the city placed the increase into effect, September 1, 1917. This suit is brought to recover from the city the amount alleged to be due from the date of the passage of the act until September 1st.

The defenses are: (1) That the act referred to is unconstitutional and void; and (2) that complainant has waived his right to receive the increased pay from April 6th to September 1st, because he accepted pay at the old rate without protest.

It is said for the city that chapter 488 of the Private Acts of 1917, in so far as it undertakes to command an increase in the rate of pay which complainant should receive, is unconstitutional and void because it undertakes to grant to certain individuals rights, privileges, and immunities not granted or extended to others, and also undertakes unlawfully to diminish the powers of the city of Memphis, and to interfere with its vested rights, and is illegal class legislation in conflict with section 8 of article 11 of the state Constitution; also that the act undertakes to deprive the city of its property arbitrarily and capriciously without due process of law, and is contrary to, and in conflict with, section 8 of article 1 of the Constitution; and that the act in so far as it purports to be mandatory undertakes to deprive the city of its property, and arbitrarily to dispose of its property and funds, and to arbitrarily make contracts for the city resulting in confiscation of its property, and undertakes to interfere with the city's private and local affairs, the conduct of which properly belongs to the governing authorities of the municipality under the implied provisions of the state Constitution.

It may be conceded at the outset that a municipality, in so far as its rights are controlled by the Constitution of this state, has a dual existence. It has the rights of an individual, and as such, in the exercise of those rights, may enjoy the privileges and immunities, and must bear equal burdens with other citizens of the state. In such capacity it is under the protection of article 11, § 8, of the state Constitution. Fleming v. Memphis, 126 Tenn. 331, 148 S.W. 1057, 42 L. R. A. (N. S.) 493, Ann. Cas. 1913D, 1306; Stratton v. Morris, 89 Tenn. 522, 15 S.W. 87, 12 L. R. A. 70; Malone v. Williams, 118 Tenn. 425, 103 S.W. 798, 121 Am. St. Rep. 1002; State v. Railroad, 124 Tenn. 1, 135 S.W. 773, Ann. Cas. 1912D, 805.

However, in its capacity as an arm or branch of the state government, and in the exercise of its governmental functions, it is to be treated as a political subdivision of the state, and its governing, or political rights, are all to be regulated by those provisions of the Constitution which refer to it in that capacity, and by the Legislature in its unrestricted sovereign capacity. Redistricting Cases, 111 Tenn. 234, 80 S.W. 750. In this view it was held at an early day that the Legislature had complete control of municipal corporations, and may abolish them at any time in its discretion. Luehrman v. Taxing District, 2 Lea, 425. The power to abolish a municipal charter necessarily includes the power to amend it if the amendment is otherwise valid. In Luehrman v. Taxing District, supra, there is to be found a wide discussion of the relationship which municipalities bear to the state government. It is shown in that case that political power conferred by the Legislature upon a municipality cannot become a vested right as against its creator, and that municipal grants of franchise are always subject to the control of the legislative power for the purposes of amendment, modification, or entire revocation. City of Memphis v. Memphis Waterworks, 5 Heisk. 495; Governor v. McEwen, 5 Humph. 241; McCallie v. Mayor, etc., 3 Head, 317; Lynch v. Lafland, 4 Cold. 96. Judge Cooper says in that case:

"There cannot be a doubt, therefore, that Act 1879, c. 10, to repeal the charters of certain municipal corporations is constitutional."

This case is a fair illustration of the dual nature of municipal corporations. State v. Wilson, 12 Lea, 246.

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