Traywick v. Gilkey

• Decision Date: 31 May 1934
• Citation: 71 S.W.2d 676,167 Tenn. 465
• Parties: TRAYWICK et al. v. GILKEY et al.
• Court: Tennessee Supreme Court

71 S.W.2d 676

167 Tenn. 465

TRAYWICK et al. v. GILKEY et al.

Supreme Court of Tennessee.

May 31, 1934

Appeal from Chancery Court, Carroll County; Tom C. Rye, Chancellor.

Suit by Lonnie Traywick and others against Murray Gilkey and others. From a decree for defendants, the complainants appeal.

Reversed and rendered.

J. Sam Johnson, J. W. Murphy, J. C. R. McCall, and P. W. Maddox, all of Huntingdon, for appellants.

R. M Murray, of Huntingdon, S. L. Peeler, of Camden, R. H. Rhodes of Paris, W. R. Stobbe, of McKenzie, and J. Ross McKinney, of Nashville, for appellees.

CHAMBLISS Justice.

Complainants below, three in number, are county highway commissioners for Carroll county, elected for two years, in August, 1932 pursuant to provisions of chapter 662, Private Acts of 1931. They filed their bill to restrain defendants Murray Gilkey and Henry Betts, claiming appointment under chapter 579, Private Acts of 1933, from displacing complainants in their offices, on the ground that the act under which they claim title is unconstitutional. They charge (1) that the changes made by the new act of 1933 are colorable only, affecting in no fundamental the road law of 1931 for Carroll county; (2) that powers are undertaken to be conferred on the commissioners with respect to the disposition of property which may be lawfully exercised by the county court only; (3) that the caption is misleading and deceptive; and (4) that the act of 1933 was passed by the Legislature fraudulently and collusively and is therefore void. The chancellor sustained a demurrer challenging these contentions, and complainants appealed.

Recognizing the power of the Legislature to terminate the holdings of incumbents of office by abolishing the offices held by them, or by the making of such fundamental changes in the law under which they hold as will work the same result, it is, also, well settled that the changes in the form or structure of the governmental agency affected must be real and substantial, not colorable only. Goetz v. Smith, 152 Tenn. 462, 278 S.W. 417; Smith v. Sells, 156 Tenn. 539, 3 S.W.2d 660; Haggard v. Gallien, 157 Tenn. 269, 8 S.W.2d 364; Holland v. Parker, 159 Tenn. 306, 17 S.W.2d 926; Loring v. McGinness, 163 Tenn. 543, 44 S.W.2d 314; Butler v. McMahan (Tenn. Sup.) 64 S.W.2d 1; Powers v. Wiseman (Tenn. Sup.) 67 S.W.2d 142, 143.

In most of these cases the acts in question were upheld, but in all of them the principle was approved that the changes must not relate alone to details of conduct and operation, but must go to the basic structure or fundamental form of the governmental arm affected.

In Loring v. McGinness, supra, among other changes, a county road commissioner was created to be elected by popular vote, succeeding a body chosen by the county court. The act was sustained. In Holland v. Parker, supra, this same change in the source of authority was made, with a like result. In Butler v. McMahan, supra, among other changes, a superintendent was substituted for a highway commission, in effect a change from a commission to a managerial form of government. The changes were found to be not merely colorable. In the last published opinion, Powers v. Wiseman, supra, the act transferred the duties formerly exercised by a county board of nine members to the workhouse commission of the county, with the effect of abolishing the former. It was held that the "change to the new system was real and not merely colorable."

On the other hand, in Smith v. Sells, supra, the court felt constrained to hold the changes colorable only, and the act void. It provided for the substitution of a county board of public school directors of five, for a county board of education of nine. The court held that this reduction in the number of the members was not substantial, as related to the form of the governmental agency. Other changes were with regard to details of service and compensation. We find a strong analogy in the case now before us. Here the two changes apparently stressed are, one, a reduction in the number of the commissioners, from three to two, the county judge being chairman ex officio under both acts. No change...