State v. Howse
| Decision Date | 07 August 1915 |
| Citation | 178 S.W. 1110,132 Tenn. 452 |
| Parties | STATE EX REL. TIMOTHY ET AL. v. HOWSE ET AL. |
| Court | Tennessee Supreme Court |
Certiorari to Circuit Court, Davidson County; Thos. E. Matthews, Judge.
Ouster proceeding by the State, on the relation of Oliver J. Timothy and others, against H. E. Howse and another. To review an order suspending them from office, defendants petition for certiorari and supersedeas. Writs denied.
Jno. T Lellyett, of Nashville, and Frank Langford, for defendants.
This case is before us on petition for writs of certiorari and supersedeas to review the action of Hon. Thos. E. Matthews circuit judge of Davidson county, in suspending from office petitioners, H. E. Howse and Robert Elliott, mayor and commissioner, respectively, of the city of Nashville.
This suspension was ordered by the circuit judge in a proceeding begun by petition of accusation filed by 10 or more taxpayers and freeholders of the city under the provisions of Acts 1915, chapter 11 commonly known as the Ouster Act, in which Howse and Elliott are charged with acts of malfeasance and illegal conduct in their respective offices.
After hearing the petition of accusation and ouster and certain proof tendered as by way of affidavits and as documentary evidence of admissions of record made by one of the accused officials under oath, the trial judge entered an order suspending the officials.
The petition filed before us challenges the constitutionality of the Ouster Act, but in the argument of the case at the bar of this court the constitutional questions were not debated, but were passed over with the statement of counsel of petitioners that it was not his purpose to argue same. We therefore treat the act as constitutional, so far as it is thus challenged.
Arising, then, for consideration as a preliminary question, is whether this court, or the Court of Civil Appeals, has jurisdiction where writs of certiorari and supersedeas are sought in a case such as this. We are of the opinion that the jurisdiction to entertain the petition for such writs is with this court.
By sections 9 and 13 of the Ouster Act it is provided that appeals in proceedings instituted thereunder shall lie to the Supreme Court, where final judgment shall be rendered, and in cases when appeals are provided by law to lie to this court we hold that the power to revise, regulate, or review orders, judgments, and decrees of circuit and chancery courts by certiorari or supersedeas is with this court. Acts 1907, c. 82, § 7.
The main contention of the petitioning officials is that the order of the court below suspending them was not rendered after a "full hearing" upon the charges contained in the petition of accusation. This insistence is predicated upon section 10 of the Ouster Act, which provides that no person shall be suspended without five days' notice of the application for the order of suspension, and "said officer shall have the right to appear and make any defense that he may have and shall be entitled to a full hearing upon the charges," etc.
By the terms of an earlier section (7) of the act it is provided that "the proceedings in ouster shall be summary and triable as an equitable action," regardless of the court in which the same are begun. The act draws a clear distinction between ouster on final hearing and a suspension on full hearing pending a final hearing and we are of opinion that the order of suspension is properly to be likened to the interlocutory orders entered in the usual equity proceeding, such as decretal orders for the appointment of a receiver, or for injunctive process. The suspension is to be by "order," and clearly to be differentiated from the final decree of ouster. The argument is advanced by counsel of the petitioners that an order of suspension cannot properly be entered until the full or entire proof is adduced by both the movants or applicants and themselves. If maintainable, this would put it in the power of the accused officials to delay a suspension until the court had before it all the proof requisite to decreeing on final hearing; that is, proof which would support a decree for an outright ouster from...
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State ex rel. Wolfenbarger, III v. Moore, No. E2008-02545-COA-R3-CV (Tenn. App. 2/12/2010), E2008-02545-COA-R3-CV.
...and that the rights granted to defendants in criminal cases are not applicable under the ouster statutes. Accord. State ex rel. v. Howse, 132 Tenn. 452, 178 S.W. 1110. Next, the Citizen Plaintiffs contend the Trial Court erred when it denied their jury demand. The Trial Court relied on Tenn......
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Cummings v. Sharp
...to ascertain and give effect to the legislative intent. Athens Hosiery Mills v. Thomason, 144 Tenn. 159, 231 S.W. 904; State ex rel. v. Howse, 132 Tenn. 452, 178 S.W. 1110. The intent of the statute as a whole must be determined. Hedges v. Shipp, 166 Tenn. 451, 62 S.W.2d 49. Its meaning is ......
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Cummings v. Sharp
... ... legislative intent. Athens Hosiery Mills v ... Thomason, 144 Tenn. 159, 231 S.W. 904; State ex rel ... v. Howse, 132 Tenn. 452, 178 S.W. 1110. The intent of ... the statute as a whole must be determined. Hedges v ... Shipp, 166 Tenn ... ...