State v. Brown

• Decision Date: 26 May 1928
• Citation: 6 S.W.2d 560
• Parties: STATE ex rel. HARRIS v. BROWN.
• Court: Tennessee Supreme Court

6 S.W.2d 560

STATE ex rel. HARRIS v. BROWN.

Supreme Court of Tennessee.

May 26, 1928.

Appeal from Chancery Court, Shelby County; D. W. De Haven, Chancellor.

Bill by the State, on the relation of J. B. Harris, against John Brown to remove defendant from an office designated as "back tax attorney." Order of removal denied, and relator appeals. Affirmed.

Collier & Collier, of Memphis, for appellant.

Chas. M. Bryan, of Memphis, for appellee.

COOK, J.

The bill was filed upon relation of citizens, under chapter 11, Acts of 1915, to remove the defendant from an office designated as "back tax attorney" of Shelby county. It is alleged that he is a Senator in the General Assembly of Tennessee, and in addition holds the office of election commissioner for Shelby county, under chapter 436, Acts of 1907, and of back tax attorney, under chapter 77, Acts of 1923.

The prayer of the bill is that defendant show why he should not be suspended from the office of back tax attorney, and upon final decree that he be removed from that office.

The case was heard by the chancellor upon bill, answer, and complainant's application for an order suspending defendant from the office of back tax attorney. The chancellor denied the order and held that chapter 77, Acts of 1923, did not create an office. Section 6 of the act provides that, after the county trustee has exhausted the ordinary remedies for the collection of taxes, he shall deliver the delinquent lists of all unpaid land taxes to an attorney chosen by him, with the approval of the county judge or chairman of the county court, and they shall cause said attorney to prepare and file suits in the chancery or circuit courts for the collection of all delinquent land taxes, and all arrears of taxes due the state, county, and municipality.

We concur in the conclusion of the chancellor that this provision of the act does not create an office. The status of the defendant under his employment by the county trustee and county judge was that of an attorney toward his client.

Admitting that defendant occupies three lucrative offices contrary to the provision of article 2, § 26, of the Constitution, chapter 11, Acts of 1915, would afford no remedy. Resort would be to a proceeding in the nature of quo warranto under section 5165 of Shannon's Code. Chapter 11, Acts of 1915, provides a remedy against officers who knowingly or willfully misconduct themselves in office, or who knowingly or willfully neglect to perform any duty...