State ex rel. Wilson v. Bush

• Decision Date: 03 February 1919
• Citation: 208 S.W. 607,141 Tenn. 229
• Parties: STATE EX REL. WILSON ET AL. v. BUSH, SHERIFF.
• Court: Tennessee Supreme Court

208 S.W. 607

141 Tenn. 229

STATE EX REL. WILSON ET AL. v. BUSH, SHERIFF.

Supreme Court of Tennessee.

February 3, 1919

Appeal from Chancery Court, Hamilton County; W. B. Garvin Chancellor.

Suit by the State of Tennessee, on the relation of Wilson and others against Nick P. Bush, Sheriff. From decree dismissing the bill, relators appeal. Appeal dismissed.

GREEN J.

The bill in this case was filed on the relation of certain citizens of Chattanooga under chapter 11 of the Acts of 1915 known as the "Ouster Act," to remove defendant Bush from the office of sheriff of Hamilton county. He was charged with collecting illegal fees, and other misconduct. Much proof was heard, and the Chancellor dismissed the bill. The relators have appealed to this court.

The bill herein was filed March 6, 1918. Final decree was rendered by the Chancellor July 13, 1918. The record was filed in this court August 22, 1918. On September 1st, the term of Bush expired. The cause was set for hearing at the September term of this court, and has been recently argued.

A preliminary motion is made to dismiss this appeal on the ground that, since defendant's term of office has expired, there is no real controversy before the court--only a moot case. It is insisted on behalf of relators that the matter of costs is to be disposed of, and that for this reason the court should pass on the merits of the case.

We think the motion to dismiss the appeal is well taken and should be granted, and that the court cannot retain jurisdiction of an ouster suit where the defendant's term of office has expired, where nothing can be done upon decree here except to tax costs.

Chapter 11 of the Acts of 1915 provides a civil remedy for the removal of unworthy officials. That is its sole purpose. A judgment against a defendant in such proceeding carries no fine or penalty and imposes no disqualification to hold office, nor does it otherwise burden the removed official. State ex rel. Howse, 132 Tenn. 452, 178 S.W. 1110; State ex rel. Crump, 134 Tenn. 121, 183 S.W. 505, L. R. A. 1916D, 951.

So, when a defendant's term of office has expired pending appeal to this court, and no salary is involved, any decree that we could make would be altogether useless and ineffectual except to adjudge costs.

Under such circumstances, courts of last resort ordinarily decline to proceed, and appeals in such plight are usually dismissed.

This seems to be the invariable rule of the Supreme Court of the United States.

In Tennessee ex rel. Maloney v. Condon, going up from this court (108 Tenn. 82, 65 S.W. 871), there was a contest over the offices of road commissioners of Knox county, under Thompson's Shannon's Code, § 5175 et seq. The terms of all the officers expired pending the writ of error, and that writ was dismissed. The Supreme Court said:

"There are cases in quo warranto in which judgment of ouster has been entered, although the term of the person lawfully entitled had expired, and also where informations have been retained, when the statute provided for fine or damages; but here the proceeding cannot now be maintained as on behalf of the public; and considered, as counsel insists it should be, as merely a contest between two sets of officials and not between the state and its officials, the state courts would be at liberty to treat it as abated, and the mere matter of costs cannot be availed of to sustain jurisdiction." Tennessee ex rel. Maloney v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709.

In Richardson v. McChesney, the same court held that the expiration of the term of office of a state official abated a suit to require certain personal acts on his part. The court said of defendant:

"He can only be rightly made to bear the costs of this proceeding if the complainant should succeed, and he only could be compelled to obey the decree of the court. As his official authority has terminated, the case, so far as it seeks to accomplish the object of the bill, is at an end; there being no statute providing for the substitution of McChesney's successor in a suit of this character." Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121.

The court in Richardson v. McChesney, supra, refers to many of its other decisions to the same effect.

In Croker v. Sturgis, the chief of the New York fire department had been illegally removed from duty by an order amounting to an indefinite suspension. This order was resisted, and the matter taken into the courts. When the case reached the Court of Appeals, the chief had been removed upon charges regularly preferred under the charter of the city, and his salary paid up until the time of his removal. The court said:

"Hence there is no right * * * capable of enforcement [here], except the costs heretofore awarded, and we have uniformly held that relief from a judgment for costs merely is not adequate ground upon which to reverse a judgment, if the questions arising upon the merits have become obsolete by lapse of time." Croker v. Sturgis, 175 N.Y. 158, 67 N.E. 307.

Ruling Case Law lays down the rule as follows:

"While pending the appeal the circumstance is changed to such an extent that the appeal involves merely a moot question, it will as a general rule be dismissed." 2 R. C. L. 169.

In Corpus Juris, we find the following:

"On the same principle, the general rule is well settled that, if pending an appeal an event occurs which renders it impossible for an appellate court to grant any relief or renders a decision unnecessary, the appeal will be dismissed." 3 C.J. 360.

"So, mere lapse of time may create this condition, as where, pending an appeal from a judgment, order, or decree of the court in a case involving the infringement of a patent, the acts or tenure of a public or election officer, or other matter, the patent expires, the official term comes to an end, the election is held or the time for holding the same has passed, or the judgment, order, or decree of court is executed, and in other like cases." 3 C.J. 364.

Many authorities are collected in the notes under the sections of Corpus Juris above quoted, which abundantly sustain the text.

It will be seen from these authorities that an appeal will not be entertained merely to dispose of a matter of costs, even in cases where the successful party is absolutely entitled to costs.

In Tennessee, there is much less reason for retaining jurisdiction in such a case; for, under our statute at this time, no party is entitled to costs as a matter of right in any civil action.

By chapter 107 of the Acts of 1917, it is provided that in all civil cases the presiding judge is authorized to apportion the costs as in his discretion the equities require or demand.

This statute makes the rule formerly prevailing in courts of equity as to costs applicable to all civil suits in courts of law as well as equity.

This court long since held that an appeal did not lie in an equity case to review the discretion of the Chancellor on the question of costs unless there was a clear case of abuse. State and County of Tennessee v. Lewis, 10 Lea (78 Tenn.) 168.

The reasoning of the above case would apply since the act of 1917 to appeals, appeals in error, and writs of error from all the inferior courts; since the taxation of costs is discretionary now with the lower courts in all cases, we could not review...