State ex rel. Timothy v. Howse

• Decision Date: 15 February 1916
• Citation: 183 S.W. 510,134 Tenn. 67
• Parties: STATE EX REL. TIMOTHY ET AL. v. HOWSE, MAYOR, ET AL.
• Court: Tennessee Supreme Court

183 S.W. 510

134 Tenn. 67

STATE EX REL. TIMOTHY ET AL. v. HOWSE, MAYOR, ET AL.

Supreme Court of Tennessee.

February 15, 1916

Appeals from Circuit Court, Davidson County; Thos. E. Matthews Judge.

Petition of accusation by the State, on the relation of one Timothy and others, against H. E. Howse and Robert Elliott. From a judgment ousting defendant Howse, but reinstating defendant Elliott, relators and defendant Howse both appeal. Affirmed.

John T Lellyett and E. F. Langford, both of Nashville, for defendants.

WILLIAMS J.

A petition of accusation on relation of ten or more citizens was filed July 20, 1915, under the provisions of Pub. Acts 1915, c. 11, commonly known as the Ouster Act, seeking the removal from their respective offices of H. E. Howse, mayor of the city of Nashville, and Robert Elliott, commissioner of waterworks, street cleaning, and workhouse of that city. The defendants filed answers, and proof was heard on an application made to the circuit judge to suspend both of the defendants from office, and he passed an interlocutory decree to that effect.

Later amended petitions of accusation were filed to which the defendants replied by answers.

The grounds of ouster set forth in the pleadings of the relators may be concisely stated as follows:

(1) Substitution by defendants of administrative regulation of saloons, bawdyhouses, etc., for the charter requirement of legislative regulations by ordinance, and a willful failure to enforce the laws and ordinances in relation thereto.

(2) The delegation to subordinates of the duty to approve vouchers which unlawful delegation made possible the thefts shown throughout the record.

(3) The approval of vouchers without consideration, if signed by the head of a particular department, as an unlawful delegation of duty.

(4) Increase of offices, salaries, and various expenditures for other departments while depriving the waterworks department of its own profits necessary for the acquisition and repair of machinery to protect life and property of the inhabitants.

(5) Padding the budget with railway park funds and other funds which were not receipts.

(6) Failure to require affidavits to contracts, showing the contractor not a person forbidden by law to contract with the city.

(7) Failure to keep separate bank accounts of trust funds as required by the charter.

(8) Failure to keep separate deposits of the school funds as required by section 1007 of the City Digest.

(9) Encroachment on trust funds.

(10) Dealing with persons prohibited by the charter.

(11) Wanton waste of the city's money.

Nearly all of these charges were denied by defendants in the answers filed.

A large volume of proof was taken orally before the circuit judge, and it shows that the city had been brought to a financial condition that bordered on practical bankruptcy at the date of the filing of the petition.

The trial judge on the final hearing decreed that Howse should be ousted from the office of mayor, but he reinstated Elliott. The relators have appealed, complaining of the ruling last mentioned, and Howse has appealed from the decree of ouster, and the case is before this court on the two appeals.

Pub. Acts 1915, c. 11, is entitled "An act to provide for the removal of unfaithful public officers, and providing a procedure therefor," and it makes provision for removal of such officers of certain classes who "shall knowingly or willfully misconduct [themselves] in office or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the State of Tennessee." It is provided thereby that petitions of accusation may be filed on relation of the Attorney General or other public officials or of ten or more citizens and freeholders of the state, county, or city, as the case may be.

Section 6 provides:

"The proceedings under this act, whether in the circuit, chancery or criminal courts, shall be conducted in accordance with the procedure of courts of chancery where not otherwise expressly provided herein; and all of said courts having cognizance of such proceedings are hereby given the full jurisdiction and powers of courts of equity with respect to such proceedings.

Sec. 7. That said proceedings in ouster shall be summary and triable as an equitable action, and shall have precedence over civil and criminal actions, and shall be tried at the first term after the filing of the complaint or petition herein named: Provided the answer herein named shall have been on file at least ten days before the day of trial. A continuance may be granted either side for good cause shown, but no continuance shall be granted by an agreement of the parties."

Other provisions of the act are for the expedition suitable to a summary proceeding, such as those that the petition and answer shall constitute the only pleadings allowed, thus obviating the delay incident to demurrers, and that amendments shall not delay the trial. Answers are required to be upon oath or affirmation of the defendants.

The first assignment of error to be noticed in logical order is: That the lower court "erred in not holding the Ouster Act (chapter 11 of Acts 1915) unconstitutional." This assignment of error does not point out the ground of unconstitutionality relied on, and is too indefinite for consideration under the rules of this court governing such assignments.

It is urged that the charter of the city of Nashville provided for the removal of officers of that corporation by recall, and that the remedy of recall is exclusive, and that therefore the Ouster Act does not apply to or affect appellant.

We held in this case when it was before us last year (State ex rel. v. Howse, 132 Tenn. 452, 178 S.W. 1112) that the Ouster Act was remedial in nature, and only provided a new or additional remedy. The charter provision in respect to recall plainly sets forth that it is also a cumulative remedy, thus:

"This method of removal shall be cumulative and additional to the methods that are now or may hereafter be, prescribed by law for the malfeasance, misfeasance or nonfeasance of public officers." Priv. Acts 1913, c. 22, § 32.

The contention is manifestly untenable.

The appellant next contends that the court erred in refusing to sustain his motion that the trial judge order a transfer of the case to be tried before another judge on interchange, on the ground that the circuit judge had prejudged the case when the case was before him on the motion to suspend appellant from office.

The fact that Judge Matthews, of the circuit court, heard the application, and suspended Howse, in no sense disqualified him to sit in the trial on the merits. The trial on the application to suspend was in this case (132 Tenn. 452, 178 S.W. 1112) likened to interlocutory orders passed by a chancellor in an ordinary equity proceeding, and the circuit judge is no more disqualified by hearing such an application than is a chancellor who, when an application for extraordinary process, such as an injunction, is heard by him at chambers, grants the same, and the case comes on later to be heard on the merits.

A motion was made by Howse in the court below for a severance and separate trial. It is assigned for error that this was denied. Whether a severance shall be granted in a civil case, such as this is, is in the discretion of the trial court. Tyson v. Netherton, 6 Heisk. (53 Tenn.) 19; 38 Cyc. 1268. There is nothing in the Ouster Act that provides to the contrary.

The appellant renews on the hearing of this appeal the insistence he urged on the former hearing in this court, to the effect that the trial judge erred in admitting in the trial on the merits testimony as to acts of malfeasance done during his pending term, but prior to the passage of the Ouster Act, January 19, 1915. We then held that the circuit judge in the trial of the application to suspend Howse properly considered such testimony, since "the act undertook to make nothing illegal that was not illegal before the act's passage, but that the act is merely remedial in its nature, and it only provides a new remedy." This holding was after full consideration, and it is upon reconsideration affirmed. A judgment of ouster under the act may therefore be predicated upon official acts transpiring prior to the passage of the act.

But the counsel of appellant point out that the circuit judge, over objections made, admitted evidence offered by the relators of certain acts of Howse while serving as mayor in the previous term of office. It is insisted that the better doctrine is that an officer cannot be removed from office for violation of his duties in such preceding term.

This is a question upon which the authorities are divided, and so much so that it is difficult to say on which side of the exact point is the weight of authority, though perhaps it is with appellant's contention. Those cases proceed upon the fundamental notion that the re-election of the official operates to condone his past offenses.

In our view, however, the opposing cases announce the better doctrine and the one more nearly in accord with our cases and with the precedent rulings in relation to our ouster act.

The reasoning and rulings in Day v. Sharp, 128 Tenn. 340, 345, 161 S.W. 994, 995, are leveled against this underlying notion:

"The protection of the public is involved in the proceeding and judgment. Nothing in the statute suggests that electors, even, can condone the misfeasance."

The reference was to another disqualifying statute of this state.

In Territory v. Sanches, 14 N. Mex. 493, 94 P. 954, 20 Ann. Cas. 109 (cited in 132 Tenn. at page 459, 178 S.W. 1112), it was said:

"It is essential to determine at the outset and to bear in mind

...