State ex rel. Atione v. McConnell

• Decision Date: 31 December 1879
• Citation: 71 Tenn. 332
• Parties: State ex relatione v. McConnell.
• Court: Tennessee Supreme Court

71 Tenn. 332

State ex relatione

v.McConnell.

Supreme Court of Tennessee.

December Term, 1879.

FROM SMITH.

Appeal from the Chancery Court at Carthage. W. G. CROWLEY, Ch.

J. J. TURNER for Complainant.

E. L. GARDENHIRE for Defendant.

COOPER, J., delivered the opinion of the Court.

By an act of the General Assembly, passed on the 14th of March, 1873, and taking effect from its passage, entitled “An act to create and establish the sixteenth judicial circuit in this State,” a new judicial circuit was established, one county of which, namely Overton county, was taken from the fifth judicial circuit. By the fifth section of the same act, the county of Trousdale was detached from the seventh and attached to the fifth judicial circuit, and by the seventh section the Judge and Attorney General of the fifth circuit were assigned to hold and attend the courts of that county.

The change was carried into effect, and the county of Trousdale from that time became practically a part of the fifth judicial circuit. At the general election of Judges in this State, held in August, 1878, the defendant, N. W. McConnell, a citizen of Trousdale county, was elected Judge of the fifth judicial circuit, and was commissioned by the Governor as such. On the 30th of October 1878, this bill was filed, in the name of the State of Tennessee, by N. B. Williams, relator, against N. W. McConnell, calling in question his title to the office of Judge of that circuit, upon the ground that the act of the 14th of March, 1873, was not read three times in one branch of the General Assembly, and the further ground that the fifth and seventh sections were not embraced within the caption of the act, nor was the pre-existing statute by which Trousdale county was made a part of the seventh judicial circuit constitutionally repealed.

William, the relator, was not one of the candidates voted for in the judicial election, but was a citizen of one of the counties comprising the fifth circuit. The bill was filed by private counsel employed by him, and neither signed nor sanctioned by the Attorney General for the district, nor the Attorney General for the State. Upon demurrer, assigning as one of its causes that a bill to remove a public officer on relation of a citizen, would only lie in the name of the Attorney General, the Chancellor dismissed the bill and the relator appealed.

The bill on its face purports to be filed “Under the Code, sections 3409 to 3431, and in the nature of a quo warranto proceeding at common law, to declare said McConnell a usurper of said office, and not entitled to exercise its powers, perform its duties, or receive its emoluments.” The demurrer upon these allegations squarely raises the question, whether a bill on the relation of a private citizen, without the intervention of the Attorney General, can be sustained under the provisions of the Code on which the bill is confessedly based.

It was held at an early day by this court, that neither the ancient writ of quo warranto, nor the information in the nature thereof, was ever in force in this State, and this decision has been adhered to. State v. Turk, M. & Y., 286; Attorney General v. Leof, 9 Hum., 755. Both the State and individuals were remitted to other remedies for the accomplishment of the ends aimed at by those proceedings. The Legislature, from time to time, passed acts which were intended to answer, in particular instances, the same purposes. Some of these acts, with supplementary provisions, were brought forward into the Code. By statutory provisions then enacted into law, particular modes were pointed out for contesting elections, and independently, for preventing the usurpation of an office. It has been held that the two classes of cases are entirely distinct. A contested election, this court has said, is not a case to which the State is a party, nor is it the duty of the district Attorney General to attend. The contest is, it is added, not analogous to a bill in the nature of a writ of quo warranto, and it can not be tried under the provisions of the Code, sections 3409 to 3423. Boring v. Griffith, 1 Heis., 456.

This bill is expressly filed under the sections thus referred to. These are the provisions of the Code manifestly designed to supply the place of the writ of quo warranto, or of the information in the nature thereof, which were held not to be in force. They do undertake to provide a remedy “whenever any person unlawfully holds or exercises any public office or franchise, or any office in any corporation created by the laws of the State.” The same mode of redress is provided “whenever any public officer has done or suffered to be done any act which works a forfeiture of his office,” and when a corporation does or omits acts which amount to a surrender or forfeiture of the rights and privileges of a corporation. So if any persons act as a corporation without authority of law, or any corporation exercises powers not conferred by law, or fails to exercise powers conferred which are essential to the corporate existence. So to bring officers of corporations, or trustees of funds given for a public or charitable purpose, to account. In all these, as well as some other enumerated cases, the remedy provided is thus stated:

“3411. The suit is brought by bill in equity, filed either in the circuit or chancery court of the county or district in which the office is usurped or held, or the corporation or supposed corporation holds its meetings or has its principal place of business.

3412. The suit is brought by the Attorney General for the district or county, when directed so to do by the General Assembly or by the Governor and Attorney General of the State concurring.

3413. It is also brought on the information of any person, upon such person giving security for the costs of the proceedings, to be approved by the clerk of the court in which the bill is filed.”

The purposes for which the suit “by bill in equity” is given by the sections of the Code referred to, are those which were attained at common law by the writ of quo warranto, or by information in the nature thereof. In other words, the statute gives a new remedy for old wrongs. The settled rule in such case is to construe the law so as to interfere as little as possible with the previous practice, and the decisions of the court on the subject of legislation.

The bill authorized to be filed is, to use the language of the opinion in Boring v. Griffith, above quoted, “a bill in the nature of a writ of quo warranto,” and therefore unlike a contested election case, requiring in its very nature the State to be a party by its Attorney General. The writ of quo warranto was a high prerogative writ for the sovereign or government, suable only by the public prosecutor. High on Ext. Rem., sec. 591. It would seem to follow logically under the rule mentioned, that the “bill in equity” for the same purpose, in lieu of the old writ, could only be filed by the State's officer.

But the provisions of the Code embraced in the sections...