State v. Cummings

• Decision Date: 12 December 1914
• Parties: STATE ex rel. BELL v. CUMMINGS, Judge, et al.
• Court: Tennessee Supreme Court

172 S.W. 290

STATE ex rel. BELL v. CUMMINGS, Judge, et al.

Supreme Court of Tennessee.

December 12, 1914.

Appeal from Chancery Court, Hamilton County; T. M. McConnell, Chancellor.

Bill by the State of Tennessee, on relation of one Bell against Will Cummings, judge, and others. Decree for complainant, and defendants appeal. Affirmed, with remand for further proceedings.

S. H. Ford, of Chattanooga, for appellants. Cooke, Swaney & Hope, and T. S. Myers, all of Chattanooga, for the State.

WILLIAMS, J.

In 1909 the General Assembly passed an act authorizing Hamilton county to issue bonds to an amount not exceeding $65,000, for the purpose of building a road across Lookout Mountain, in that county. Acts 1909, c. 417. The bonds were shortly thereafter voted and sold, realizing $65,000. A commission was appointed to supervise the construction of that road, but for some reason the fund was allowed to remain in bank almost wholly unused.

The General Assembly at its 1913 session passed an act amending the above act of 1909 so as "to provide for the diversion of the fund arising from the sale of said bonds to other roads in said county, and to provide for the manner in which said funds shall be expended." Private Acts 1913, c. 272.

The bill of complaint alleged these facts, in substance, and the further facts that Cummings, county judge and financial agent of the county, and the other defendants, who are the public road commissioners of the county, refused to recognize the act of 1913 as constitutional or in operation, and refused to proceed, after due demand, with the construction of the substituted system of highways. A mandamus was prayed for.

The defendants demurred and answered, contesting on several grounds that the amendatory act of 1913 is not constitutional, but the chancellor decreed against them and in favor of complainants. This appeal resulted. Only one phase of defendants' case on appeal will be dealt with in this opinion, the others being disposed of orally and in the decree of this court.

The chief contention of the appellants is that, after the bonds were voted, issued, and sold for a specific purpose, that of constructing a highway over Lookout mountain, it was not in the power of the Legislature to divert the fund, in whole or in part, to the construction of different roads, as was attempted by the act of 1913.

This involves a consideration of the relation sustained by a county as a public corporation to the state. In Demoville v. Davidson County, 87 Tenn. (3 Pickle) 214, 225, 10 S. W. 353, 356, it was said:

"The county is but an emanation from the state. It does not exercise any power or franchise under any contract between itself and the state. The latter creates, and it may destroy. The state delegates the power of taxation, but it may withdraw such power, and itself assess taxes for municipal purposes."

In the absence of constitutional restraints, and our Constitution contains none, it was declared in Luehrman v. Taxing District, 2 Lea (70 Tenn.) 425, 438, the maxim of republican government that local affairs should be managed in the local district is subject to such exceptions as the legislative power shall see fit to make.

"The Legislature has the power to do whatever is not expressly, or by necessary implication, forbidden by the Constitution." Id.; Meriwether v. Garrett, 102 U. S. 511, 26 L. Ed. 197; Redistricting Cases, 111 Tenn. 234, 290, 80 S. W. 750.

It follows that a county as a mere arm of the sovereign power can have, as against the legislative power of the sovereign, no vested rights in the powers conferred upon it for governmental purposes, and that the Legislature has plenary power to make provision respecting and to direct the expenditure of the funds of a county raised and held by it under or based upon the taxing power delegated to it.

In the case of Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. Ed. 822, it appeared that the Legislature of Indiana had by an act (1872) directed the restoration to taxpayers of a county of property that had been exacted from them by taxation, under a previous statute, so long as it remained in the possession of the county. Mr. Justice Field, holding that this exercise of power on the part of the Legislature infringed no provision of the federal Constitution, said:

"In this court, also, the validity of the act of 1872 is the sole question presented. The act is assailed here, as in the court below, as authorizing an invasion of the right of private property, and as impairing the obligation of an executed contract. Were the transaction one between the state and a private individual, the invalidity of the act would not be a matter of serious doubt. Private property cannot be taken from individuals by the state, except for public purposes, and then only upon compensation, or by way of taxation; and any enactments to that end would be regarded as an illegitimate and unwarranted exercise of legislative power. And any attempt by the Legislature to take private property from its grantee and restore it to its grantor would be in conflict with the constitutional inhibition against impairing the obligation of contracts.

"But between the state and municipal corporations, such as cities, counties, and towns, the relation is different from that between the state and the individual. Municipal corporations are mere instrumentalities of the state, for the convenient administration of government; and their powers may be qualified, enlarged, or withdrawn at the pleasure of the Legislature. Their tenure of property, derived from the state for specific public purposes, or obtained for such purposes through means which the state alone can authorize — that is, taxation — is so far subject to the control of the Legislature that the property may be applied to other public...