Underwood v. Hickman

• Decision Date: 01 July 1931
• Citation: 39 S.W.2d 1034,162 Tenn. 689
• Parties: UNDERWOOD et al. v. HICKMAN, Judge, et al.
• Court: Tennessee Supreme Court

39 S.W.2d 1034

162 Tenn. 689

UNDERWOOD et al. v. HICKMAN, Judge, et al.

Supreme Court of Tennessee.

July 1, 1931

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit by Frank Underwood and others against Litton Hickman, Judge, and others. From the decree, defendants appeal.

Affirmed.

Aust Cornelius & Wade and Horace Osment, all of Nashville, for appellants.

W. C Cherry, W. B. Marr, Lowe Watkins, Henry C. Lassing, and Jack Norman, all of Nashville, for appellees.

MCKINNEY J.

By chapter 101, Pub. Acts of 1921, county officers in Tennessee were deprived of their fees and given salaries. The counties were classified on a population basis as follows:

"Counties having a population of 200,000 or more shall constitute counties of the first class.

Counties having a population of 100,000 or more but less than 200,000 shall constitute counties of the second class.

Counties having a population of less than 100,000 shall constitute counties of the third class.

Provided, that the population of the several counties for the purpose of this Act shall be determined by the Federal Census of 1920, and by each succeeding Federal Census." (Section 2.)

Davidson county fell within the second class; the salary of the county court clerk being fixed at $6,000. The population of Davidson county by the census of 1930 is 222,264, bringing it within the first class, which entitles the county court clerk to a salary of $7,500. The only question involved upon this appeal is the date that this increase in salary becomes effective. The chancellor fixed the date as of April 1, 1930.

The census of 1930 was taken pursuant to chapter 28, Acts of Congress of 1929 (13 USCA §§ 201-219).

By section 1 (13 USCA § 201) it is provided that a census population shall be taken by the Director of the Census in the year 1930 and every ten years thereafter.

By section 2 (13 USCA § 202) it is provided: "The period of three years beginning the 1st day of January in the year 1930 and every tenth year thereafter shall be known as the decennial census period, and the reports upon the inquiries provided for in said section shall be completed within such period."

By section 6 (13 USCA § 206) it is provided that the census of the population shall be taken as of the 1st day of April, and it is made the duty of each enumerator to commence the enumeration of his district on the day following, unless the Director of the Census in his discretion shall change the date of commencement of the enumeration in said district by reason of climatic or other conditions which would materially interfere with the proper conduct of the work; but, in any event, it shall be the duty of each enumerator to prepare the returns and forward same to the supervisor of his district within thirty days from the commencement of the enumeration.

By section 13 (13 USCA § 213) the Director of the Census is authorized to have printed by the Public Printer, in such editions as he may deem necessary, preliminary and other census bulletins, and final reports of the results of the several investigations authorized by this statute, and to publish and distribute said bulletins and reports.

By section 18 (13 USCA § 218) the Director of the Census is authorized at his discretion, upon the written request of the Governor of any state or territory or a court of record, to furnish such Governor or court of record with certified copies of so much of the population returns as may be requested, upon the payment of the actual cost of making such copies and $1 additional for certification.

From the foregoing, it will be observed that the census shall be taken as of April 1st, that the Director is given three years to complete his report, but is authorized to make preliminary reports from time to time. No specific provision is made for publishing official reports, and the statute does not fix a definite date when the new census becomes effective. The only logical conclusion is that it becomes effective on April 1st, and such, in our opinion, was the intention of Congress. Should we adopt any other date, it would result in irregularity and nonuniformity. For example, two counties could be raised by the same census to another class; the population of one might be officially determined on July 1st and the other on October 1st, so that in the one county the clerk would begin drawing the increased salary three months before the clerk in the other county would be entitled to the additional compensation. Theoretically, at least, they are entitled to the same compensation, and to construe the law as contended by complainants would result in inequality and injustice.

We have been cited to but two cases dealing directly with this question, and both support our holding.

In Lewis v. Lackawanna County, 17 Pa. Super. Ct. 25, 29-30, 32, it appears that by the census of 1900 the population of Lackawanna county was 193,831, but by the census of 1890 the population was 142,088. By the Act of 1876 [16 PS § 2321] district attorneys in counties having a population of less than 250,000 and more than 150,000 received a salary of $4,000 per annum. District attorneys in counties of less than 150,000 were compensated by the fees of office. Plaintiff, Lewis, was elected district county attorney on November 6, 1900, and assumed office January 7th following. Between that date and January 12, 1901, he earned fees amounting to $120, for which he sued. The census for 1900 was taken under an act of Congress, which provided that the census should be taken as of June 1st. The population of Lackawanna county by the census of 1900 was first announced in a bulletin from the census office on November 19, 1901. In holding that the county came within the act of 1876, and denying the claim of Lewis to the fees sued for, the court said:

"In view of the law classifying counties for the purpose of fixing salaries of their officials, and of the interpretation put thereon by the Supreme Court in the cases above quoted, when does a county pass from one class to another, and what determines its transfer? Is it the fact of the existence of its population, as ascertained by the decennial census, or of the public announcement of such a fact? The act of Congress, providing for the census, enacts that the enumeration shall not only be made but shall be taken, by which we understand is to be determined or held, as of June 1. The Supreme Court says that the fact must govern, that is, the county remains in the class in which the last census found it, until it is transferred to another class by a subsequent census. The census is the enumeration of the population, not the announcement of the result. This must necessarily be so from a variety of considerations.

The...