Southern v. Beeler

• Decision Date: 01 June 1946
• Citation: 195 S.W.2d 857,183 Tenn. 272
• Parties: SOUTHERN v. BEELER, Atty. Gen., et al.
• Court: Tennessee Supreme Court

195 S.W.2d 857

183 Tenn. 272

SOUTHERN v. BEELER, Atty. Gen., et al.

Supreme Court of Tennessee.

June 1, 1946

On Petition to Rehear June 29, 1946.

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by W. H. H. Southern, suing for himself and all others in like circumstances living and owning taxable property within the city of Knoxville, against Roy H. Beeler, Attorney General of Tennessee, and others, wherein the validity of certain appropriations was challenged and an injunction restraining the payment thereof was sought. The chancellor decided some of the issues in favor of complainant and others in favor of the defendant. From the decree, both litigants appeal.

Modified and affirmed as modified.

On Petition to Rehear.

Southern & Southern and Joel H. Anderson, all of Knoxville, for complainants.

James W. K. Johnson and Johnson & Johnson, all of Knoxville, for defendants.

NEIL Justice.

The complainant filed his original injunction bill in the chancery court, as a citizen and taxpayer of Knox County against Roy H. Beeler, Attorney General of Tennessee, Knox County, James W. Elmore, Jr., County Judge of said county Jack Dance, county court clerk, Lum Reeder, Jr., trustee, and L. H. Brickey, Superintendent of Public Instruction, and also against the members of the Board of Education of Knox County naming them. The complainant sued for himself and all others in like circumstances who live and own taxable property within the corporate limits of the City of Knoxville. The attorney general of the state was made a party defendant because the bill challenges the constitutionality of certain statutes. The bill also challenges the validity of certain appropriations made by the county court, and seeks an injunction restraining the payment thereof.

All defendants in due course filed answers and the case was decided by the chancellor upon the technical record. It is true that certain witnesses were called and testified on behalf of the defendants, but their evidence was of little or no probative value as to the merits of the issues involved.

The questions presented on this appeal involve the constitutionality of certain private acts of the legislature which affect the government of Knox County and especially the school system of said county. The chancellor decided some of these issues in favor of the complainant and others in favor of the defendants, the result being that both litigants have appealed and assigned errors.

We will first consider the assignments of error of defendants: (1) 'The Chancellor erred in holding unconstitutional Chapter 210 of the Private Acts of 1945 which authorized the County Court of Knox County to issue bonds for the erection and repair of school buildings.'

It is defendants' contention that while this special act excepts Knox County from the operation of the general law relating to the issuance of school bonds, it should be held valid because it affects the county in its governmental capacity.

The amount of school bonds authorized to be issued by the county court must not be in excess of the sum of one million dollars and, as above stated, the proceeds from the sale of such bonds are for the purpose of erecting school buildings, making repairs, purchasing lands upon which to erect buildings, provide for playgrounds, etc. Section 2 of the act provides the bonds shall be payable in twenty years from the date thereof and may be issued serially from time to time in blocks of $100,000 or a fraction thereof. The county judge and county court clerk are empowered to sell said bonds 'after a majority vote of the Quarterly County Court' in favor of their issuance. Section 8 of the act provides 'that this Act is independent of and paramount to Chapter 69 of the Public Acts of 1923, and all general and special acts which require bond issues to be submitted to a vote of the people, or any Constitution or amendment to the Constitution,' etc.

The act makes provision for the levying and collection of a tax upon 'all the property in Knox County' for the payment of interest and to create a sinking fund for the retirement of these bonds. No provision is made for a pro rata distribution of funds arising from the sale of the bonds between the county and the city of Knoxville in accordance with the general law, Code section 2563.

Acting upon the authority of this private act, the County Court adopted a resolution authorizing the sale of $25,000 of said school bonds.

The chancellor held the act invalid as being in violation of Article XI, Section 8, of the Constitution, as follows: 'Said Act and resolution of the County Court undertakes to suspend the general law of the State and to grant to certain individuals rights, privileges, and immunities not granted to others, and to particularly grant rights and privileges to approximately one third of the population of Knox County at the expense and contrary to the rights and interests of the remaining two-thirds of the population.'

It is conceded that under the act the taxpayers of the City of Knoxville who pay approximately two-thirds of the taxes in Knox County would be compelled to carry this proportion of the million dollar indebtedness without receiving any direct benefit and without having any voice in the creation of said indebtedness.

The act is in direct conflict with Code sections 2557-2569, inclusive, and especially Section 2563, which reads as follows: 'In counties having a city or cities operating schools independent of said county, the trustee of said county shall pay over to the treasurer of said city that amount of said funds which shall bear the same ratio to the entire amount arising from the provisions of this article as the scholastic population of said city or cities bears to the entire scholastic population of said county; provided, however, that the said funds paid over to the said city treasurer shall be kept separate from all other funds in the manner and for the purposes herein provided for said county funds to be used.'

The act is also in conflict with the general law as found in Section 10248 of the Code which requires that all bonds issued upon the credit of any county for public purposes 'shall only be upon an election to be first held by the qualified voters of such county and the assent of the majority of the votes cast in said election.'

In determining the validity of the act here assailed it is not important that it is in conflict with the foregoing section of the Code. State ex rel. v. Safley, Chmn., et al., 172 Tenn. 385, 112 S.W.2d 831. The general school law providing for the issuance of bonds for school buildings provides (Code sections 2557, 2567) that the quarterly county courts may issue and sell such bonds by resolution 'provided, however, that said county shall not issue an amount of bonds to exceed three per cent. of the value of the taxable property for said county.' It was held in State ex rel. v. Safley, supra, that Code section 10248 is not applicable where the bonds are issued for limited purposes, that is, for the erection and repair of school buildings, etc. We think the bonds issued by the county court for school purposes, as provided in Code section 2567, must be apportioned between the county and the City of Knoxville, as required by Code section 2563, and, since the private act here assailed makes no provision for such apportionment, it cannot be sustained. The effect of this act is to suspend the general law of the state and to grant to Knox County rights, privileges, and immunities not granted to other counties, which is in clear violation of Article XI, Section 8, of the Constitution.

We find no merit in the contention that the act must be sustained because it affects the county in its governmental capacity. In Town of McMinnville v. Curtis et al., 183 Tenn. 442, 192 S.W.2d 998, the majority opinion says: 'The Legislature may constitutionally enact a special act affecting one particular county or municipality alone in its political or governmental capacity, provided such special act is not contrary to the provisions of a general law applicable to all the counties or municipalities and is upon a reasonable basis. Otherwise it is void.' We dealt with this question in Clark v. Vaughn, 177 Tenn. 76, 146 S.W.2d 351, and there held that a private act affecting the Town of Athens in its political capacity was invalid because it operated to suspend the general election laws of the state and conferred a special benefit upon the town which was not enjoyed by other political subdivisions of the state, citing State ex rel. Bales et al. v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618, and other cases. See also Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71.

It will be readily conceded that education is a governmental function. In Gilliam v. Adams et al., 180 Tenn. 74, 171 S.W.2d 813, a private act which applied only to Henderson County and regulated the employment of school teachers as to qualifications, salaries, etc., was held invalid because it was in conflict with the general school law and in violation of Article XI, Section 8, of the Constitution. The same question was considered in State ex rel. Bales et al. v. Hamilton County, supra.

The collection of taxes is beyond question a governmental function. 6 McQuillin, Municipal Corporations (Rev.) Sec. 2815.

In 1929, Priv.Acts 1929, c. 502, the Legislature amended the Charter of Memphis by providing a method of collecting delinquent taxes, which was in conflict with the general law. It was there contended that the charter as thus amended should be sustained because 'this act only affected the city in its political capacity, and therefore it is not violative of article eleven, § 8, of the Constitution.' The act was...