State v. City of Bristol

• Decision Date: 24 November 1902
• Parties: STATE ex rel. CLYDE et al. v. MAYOR, ETC., OF CITY OF BRISTOL.
• Court: Tennessee Supreme Court

70 S.W. 1031

109 Tenn. 315

STATE ex rel. CLYDE et al. v. MAYOR, ETC., OF CITY OF BRISTOL.

Supreme Court of Tennessee.

November 24, 1902

Appeal from chancery court, Sullivan county; John P. Smith Chancellor.

Mandamus by the state, on relation of Thomas Clyde and others, against the mayor and aldermen of the city of Bristol. From a judgment in favor of relators, affirmed by the court of chancery appeals, defendant appeals. Affirmed.

A. O Keebler, Burrow Bros., and C.J. St. John, for appellant.

Bullitt & Kelly and Curtin & Haynes, for appellees.

WILKES J.

This is a petition for mandamus to compel the city of Bristol to levy and collect a tax to pay certain judgments rendered by this court upon interest coupons from bonds issued to pay a stock subscription by the city to the South Atlantic & Ohio Railroad Company. The application is resisted upon two grounds: First, because complainants, by their mode of proceeding, and under their pleadings, have reopened the question of the validity of the bonds from which the coupons were clipped, and it is claimed the bonds are illegal and invalid, and the judgments should never have been rendered second, that, if the judgments be held good and conclusive still there is no power in the municipality to levy a tax for the payment of them, or interest on them. The chancellor gave the relief prayed, and granted a peremptory mandamus, and his decree was, on appeal, affirmed by the court of chancery appeals; and the city has appealed to this court, and in this court continues the contentions made in the court below.

The court of chancery appeals held, upon the first feature of the case, that the validity of the bonds had already been adjudged by that court and affirmed by the supreme court, and it was bound by the decree of the latter court; and it therefore declined to discuss or pass upon the merits of the original question, of the validity of the bonds. Upon the second feature of the case, that court held that the city had the power to levy and collect the tax, and gave a full and exhaustive discussion of the facts and law.

It appears that the validity of the bonds from which the coupons were clipped which are the basis of this judgment has been twice declared by this court,--once in Slack v. Mayor, and again in Mayor, etc., v. San Antonio & O. R. Co. [oral opinions].

We proceed to examine the question whether this court can or should go behind the judgments heretofore rendered, and inquire again into the validity of the bonds and coupons, under the pleadings and proceedings in the present case. It is claimed that this may be done, inasmuch as the relators invoke the law as it existed when the bonds were issued, and also as it now exists, and this insistence is based upon the holding of the United States supreme court in the case of Brownsville v. Loague, 129 U.S. 493, 9 S.Ct. 327, 32 L.Ed. 780. In that case it was said: "As already remarked, the circuit court did not hold that the peremptory writ should go to command a levy to pay judgments as debts in that form, but based its order upon the inability of the respondents, by reason of the judgments, to assert the abrogation of the act in question. Under the legislation between the issue of the bonds, in 1870, and this application, in March, 1886, authority to levy taxes to pay debts of the character represented by these judgments, when uncompromised, did not exist, so that plaintiff was remitted, in the assertion of a right to that remedy, to the time when the bonds were issued; and as the city had then no power to tax to pay them, other than that derived from the act of February 8, 1870, the relator, by his pleadings, opened up the facts which attended the judgments for the purpose of relying upon that act as furnishing the remedy which he sought. In this he, in effect, asked the court to order the levy of a tax to pay the coupons, and relied on the judgments principally as creating an estoppel upon a denial of the power to do so. Thus invited to look through the judgments to the alleged contracts on which they were founded, and finding them invalid for want of power, must we nevertheless concede to the judgments themselves such effect by way of estoppel as to entitle the plaintiff, ex debito justitiæ, to a writ commanding the levy of taxes under a statute which was not in existence when these bonds were issued?" After discussing the case of Harshman v. County Ct. of Knox Co., 122 U.S. 306, 7 S.Ct. 1171, 30 L.Ed. 1152, the court further said. "But in the case at bar it appeared from the judgment records, or, if not, from relator's petition, that the bonds were issued under an abrogated statute, and were consequently void, and that the respondents possessed no power to tax to pay them, because that power was given only by the statute which had so ceased to exist. The power invoked is not the power to tax to pay judgments, but the power to tax to pay bonds, considered as distinct and independent; and therefore when the relator is obliged to go behind his judgments, as money judgments, merely, to obtain the remedy pertaining to the bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and that no such remedy exists. Res adjudicata may render straight that which is crooked, and black that which is white; *** but when application is made to correct judgments by process not contained in themselves, and requiring to be sustained by reference to the alleged cause of action on which they are founded, the aid of the court should not be granted, when, upon the face of the record, it appears, not that mere error supervened in the rendition of such judgments, but that they rest upon no cause of action whatever." Citing authorities. It will be seen from these extracts that the action in the Loague Case was not to compel a levy of a tax to pay judgments, as such but to pay bonds which have been held by the court to be void. The act upon which the validity of the bonds depended had been abrogated by the constitution before the contract was made, and it had therefore been declared unconstitutional and void. The relator could not in that case sue upon his judgments, relying upon the act, and he was therefore remitted to and sought the remedy existing when the bonds were issued, which was the act afterward abrogated. Consequently his action was for a levy to pay bonds, and the judgments were relied on simply as an estoppel upon the city to raise the question of the invalidity of the act. The present suit is one to provide a tax to pay judgments recovered, which are in full force, and which are based upon acts which have not been abrogated, and judgments which have been pronounced after full investigation twice by this court. In other words, this court has passed upon the validity of these bonds twice before the relators acquired vested rights in the bonds, and once since these rights accrued, and has pronounced the bonds valid, and upheld the act which ratified the contract of subscription, cured its defects, if any, and authorized the issuance of the bonds.

As before stated, the question of the validity of these bonds has been passed upon by this court in Slack v. Mayor and in Mayor, etc., v. San Antonio & O. R. Co. This being so, the decision in Richardson v. Marshall Co., 100 Tenn 351, 45 S.W. 440, is in point, where this court says: "In the face of such a decree in such a litigation, and of such a recognition, and the consequent encouragement to free circulation in the markets of the country, the county will not at this late date be heard to question the original validity of the bonds on any ground whatever, and especially as against the complainant, whose testatrix made her purchase in good faith and for value long after that adjudication, and when nearly all of the interest had been paid on each of the bonds she bought. It may be conceded, as was decided by the court of chancery appeals,...