State v. Allen

• Decision Date: 27 February 1900
• Citation: 57 S.W. 182
• Parties: STATE ex rel. ATTORNEY GENERAL v. ALLEN.
• Court: Tennessee Supreme Court

57 S.W. 182

STATE ex rel. ATTORNEY GENERAL v. ALLEN.

Court of Chancery Appeals of Tennessee.

February 27, 1900.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bills in the nature of quo warranto by the state of Tennessee, on the relation of the attorney general, against Wharton J. Allen and others. Cases consolidated. From a decree against defendant Allen, he appeals. Affirmed.

Lellyett & Barr and J. A. Cartwright, for relator. J. H. Acklen, J. C. Bradford, Jas. A. Ryan, and Moreau P. Estes, for respondents.

NEIL, J.

Under this title we have four cases embraced in the transcript, — one against Wharton J. Allen, the second against J. J. Doyle, the third against W. M. Drake, and the fourth against Peter Harris, Jr. Each bill was in the nature of a quo warranto against each of the several defendants, to test their right to hold the office of justice of the peace in the city of Nashville. The four cases were consolidated by agreement of parties and by order of the court, and heard together in the chancery court on the same proof. Mr. Doyle filed a separate answer, but the other three defendants joined in the same answer. The chancellor decreed against the defendant Wharton J. Allen, and in favor of the defendants Doyle and Drake. Peter J. Harris having died pending the litigation, that suit was abated.

The underlying question, as stated in the briefs, is whether, under certain legislative acts, the First civil district of Davidson county, embracing the city of Nashville, and the city of Nashville itself, are entitled to 20 justices of the peace, or to 40. The chancellor was of opinion that only 20 justices of the peace could be allowed under the statutes in question, but that as Mr. Doyle and Mr. Drake were the successors of justices of the peace who were legally such, by reason of each of them being one of the alleged 20 who had received the highest number of votes, these two were decreed to be the successors, and hence lawful justices of the peace. As Wharton J. Allen did not stand as successor to any such prior justice of the peace who belonged to the 20 having received the highest number of votes, he was decreed to be not entitled to hold the office, as before stated. The consolidated cases stood under the style which we have fixed above to this case. On the 14th of November, 1899, an order was entered granting an appeal "on defendants, or either of them, giving a sufficient appeal bond within the next twenty days." On November 28, 1899, the defendant W. M. Drake entered into a bond, as principal, with proper sureties. This bond purports to be executed alone on his own behalf and on his own appeal. It does not purport to be in behalf of the other defendants. On this bond being filed, the transcript in all the cases was made out and sent to the supreme court, and thence passed to the docket of this court; the record being filed on the 1st of December, 1889. On December 1st an order was entered in the court below allowing Wharton J. Allen 10 days additional to the 20 days granted by the above-mentioned order, to give a sufficient appeal bond. It is dated on the same day the transcript was filed in the supreme court, but, we infer, after the transcript was made out, as the decree just mentioned comes up under a separate certificate. Likewise a decree appears in the record, of date December 7, 1899, to the effect that Wharton J. Allen had asked that his case should be severed from the other three causes, and that he should be allowed to prosecute his appeal separately, and this motion was granted. This latter decree is not regularly a part of the transcript (that is, so much of the transcript as was brought up on the appeal of W. M. Drake), but, as it is filed with the transcript under the certificate of the clerk and master of the court below, it is set forth here. On the 13th of December, 1899, Mr. Drake came before the court, and on his own motion dismissed his appeal. An order was entered to that effect. On the 8th of December, 1899, the record was filed for error by the complainant. It is said in the briefs, and conceded at the bar, that the defendants were notified to appear in this latter proceeding at the December term, 1900, of the supreme court. In this state of the record, it was denied by the defendants Drake and Doyle that the court had any jurisdiction to proceed. In this condition the case came on to be heard a few days prior to the 13th of January, 1900, and on the day last mentioned an opinion was filed. In that opinion we found the facts substantially in the language above stated and held with the contentions of the defendants. We decided that the appeal of Mr. Drake did not bring up the cases consolidated with his case, and hence that we had no jurisdiction of any of the defendants upon the appeal. We also held that we had no jurisdiction of the case upon the writ of error, because the supreme court had assigned to this court only such equity cases as were filed up to and including December 2, 1899. We added in our opinion then filed the following: "The case is a very important one, of course, and should be determined speedily, if possible, so there may be no embarrassment as to the number of justices to be elected at the next general election, which occurs during the present year. Still, while fully recognizing the importance of the case and the necessity of a speedy decision, we have no power, under the present status, to consider the question involved. Of course, upon the record being filed for error, the case was transferred to the supreme court. The only recourse the parties have, so far as we can see, is an application to that court to advance the cause." Thereupon this court entered a decree holding that it had no jurisdiction either upon the appeal or upon the writ of error, and declined to further consider the matter. From this decree the complainants prayed an appeal to the present term of the supreme court. When the case reached the supreme court a motion was made to advance the cause, and it was advanced, and then remanded to this court, to be heard and determined. It is therefore now before us for a consideration of the question above stated. It should be remarked, however, before proceeding to the consideration of this matter, that a brief is filed, signed by counsel, protesting that this court, under the facts stated, has no jurisdiction to proceed to a decision of the question. It is said that, inasmuch as Mr. Doyle is the successor of one of the 20 magistrates who received the highest number of votes, and afterwards died (J. L. Glenn, Esq.), and Mr. Drake is the successor of another one of the 20 magistrates who received the highest number of votes, and had moved from the county, their cases must be put upon another ground, and they are not interested in the main question. It is further urged in this case that, inasmuch as Wharton J. Allen had procured a severance of his case in the court below, the writ of error issued in the consolidated cases would not bring him before the court, although notice was served on him. Hence it is said that this court has no jurisdiction of him. The argument is that inasmuch as this court has no jurisdiction of Mr. Allen, and the cases of Mr. Doyle and Mr. Drake must be put upon another ground, therefore the court should not settle the point made upon the statute, as that would be to pass merely upon a moot question. It is urged that Messrs. Doyle and Drake have no interest whatever in the question made upon the statute. This brief is signed by counsel, but it does not appear in whose behalf it is filed. The counsel's name is signed to it, but he does not sign himself as counsel for any particular person, and, as we gather from the brief, it is filed in the nature of a brief amicus curiæ. The court has carefully read the brief upon this subject filed by Mr. Estes, but is of opinion that it has no discretion in the matter since the remand to this court by the supreme court. The only rationale of the advancement of the cause in the supreme court was that the question might be determined in advance of the regular time at which it could be heard (that is, at the December term, 1900), because of its public character. After the cause was advanced in the supreme court, on this ground and remanded to this court to be determined, it would be idle for this court to decline to consider the matter for the want of jurisdiction. We regard the action of the supreme court in sending the case back to us, on the facts stated, as deciding the question of jurisdiction under the writ of error. In addition to this, we are of opinion that although Wharton J. Allen had severed his case in the manner already stated, and although the writ of error was sued out in the consolidated cases, yet, inasmuch as notice was served upon him and upon each of the other defendants, each case would be brought into the supreme court, as against each defendant, and therefore that Wharton J. Allen is before the court, as well as the other two defendants. We are furthermore of the opinion that, even if the court should decide that the cases of Mr. Drake and Mr. Doyle could be made to rest upon the ground where they place them, yet it would not be improper, even in their cases, to examine the question made upon the statute, with a view to determining whether their rights could be made to rest also on that question. With these preliminary remarks, we proceed to the consideration of the main question.

By chapter 168, Acts 1847-48, the several acts incorporating the town of Nashville were united and reduced into one act. By subsection 34 of section 6 the mayor and aldermen were given the power "to fix from time to time the number and boundary of the city wards." Pursuant to the power conferred, the mayor and aldermen, by ordinance, first divided the corporate limits into 6 wards. In 1854 the Seventh and Eighth wards were added. Prior to 1866 there were only 8...