Van Dyke v. Thompson

• Decision Date: 24 October 1916
• Citation: 189 S.W. 62,136 Tenn. 136
• Parties: VAN DYKE ET AL. v. THOMPSON ET AL.
• Court: Tennessee Supreme Court

189 S.W. 62

136 Tenn. 136

VAN DYKE ET AL. v. THOMPSON ET AL.

Supreme Court of Tennessee.

October 24, 1916

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

Suit by T. N. Van Dyke and others against T. C. Thompson and others. From decree dismissing the bill, complainants appeal. Decree affirmed.

Pritchard & Sizer, Chambliss & Chambliss, Spears, Lynch, Spears & Phillips, and Murray & Latimore, all of Chattanooga, for appellants.

Anderson & Rankin, Trimble & Moon, Cooke, Swaney & Hope, White & White, Smith & Carswell, Watkins, Thompson & Watkins Shepherd, Fleming & Shepherd, M. N. Whitaker, R. B. Cooke Coleman & Frierson, A. W. Gaines, Thomas & Thomas, Bachman & Noll, Foust & Payne, Miller & Miller, Brown, Spurlock & Brown, Garvin & Cantrell, and Wheeler, Martin & Trimble, all of Chattanooga, for appellees.

BUCHANAN J.

This cause originated upon the filing of complainants' bill in the chancery court of Hamilton county.

The complainants allege that they are, respectively, regularly elected and qualified officers of the city of Chattanooga and citizens and taxpayers thereof, and in their bill predicate their right and title as such officers upon the original charter act of the city, which is chapter 4 of the published private acts of the General Assembly of the years 1869 and 1870, and upon sundry acts amendatory of the original act.

The purpose of complainants' bill is to enjoin defendants from interfering in any way with complainants, and each of them, in the discharge of the respective offices which complainants severally claim, and to enjoin defendants, and each of them, from attempting by any process or steps whatever to take charge of any part of the city government of Chattanooga, and from the exercise of any of the functions or powers, and from administering, or attempting to administer, in any capacity whatever, the affairs of the city, and from putting into effect or operation any of the provisions, and from exercising any of the powers set forth and contained in a certain act of the General Assembly of the state of Tennessee, a copy of which is made Exhibit A to complainants' bill, and which is by the bill alleged to have been passed on the 30th day of January, 1911, as House Bill numbered 43, and entitled, "An act to amend the charter of the city of Chattanooga and all acts amendatory thereof," and the further purpose of complainants' bill is to have a decree declaring said act to be in violation of the Constitution of the state of Tennessee, and therefore null and void.

The bill avers that the defendants, who are five in number, claim to have been elected, as a board of commissioners, and one of them as mayor, of the city of Chattanooga, under the provisions of the act, and that the defendants intend to qualify as such officers, and to enter upon the discharge of the official duties prescribed in the act, and thereby to interfere with and embarrass complainants in the discharge of their alleged official duties to the irreparable injury of the complainants, and the city, and to the especial and peculiar injury of the complainants, in that they, by such interference, will be deprived of the privileges, honors, powers, and emoluments incident to the offices which they claim to be entitled to enjoy to the end of the respective terms for which they claim respectively to have been elected.

The defendants demurred to the bill, coupling their demurrer with an answer. The chancellor sustained the demurrer as to the whole bill, and therefore dismissed the bill, and the complainants appealed to this court.

The sole question presented is whether the act of 1911 in any respect involving the rights of complainants is in conflict with the Constitution of this state.

The first assignment of error is based upon that part of article 2, § 17, of the Constitution of Tennessee which provides that:

"All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended."

The caption of the act of 1911 is as follows:

"An act to amend the charter of the city of Chattanooga and all acts amendatory thereof."

And section one of the act is as follows:

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that the charter of the city of Chattanooga, * * * and all acts heretofore passed by the General Assembly of the state of Tennessee amendatory thereof are hereby amended as hereinafter provided."

Then follows section 2 to section 29 of the act, from a reading of which, in connection with the charter of the city, may be gathered full information of the purpose, scope, and effect of all amendments of the charter made by the act. By section 27 of the act it is provided:

"That all provisions of the present charter of the City of Chattanooga and the acts amendatory thereof not in conflict with this amendatory act are continued in full force and effect."

And by section 28 of the act it is provided:

"That all acts and parts of acts in conflict with this act be, and the same are hereby, repealed."

By section 29 of the act it is provided:

"That this act take effect from and after its passage, the public welfare requiring it."

The title to the act of 1911 gave notice on the introduction of the bill that the subject of the legislation proposed by the bill was the amendment of the charter of the city of Chattanooga, Tenn., and further the amendment of all acts amendatory of the charter, and the body of the act, read in connection with the charter and all acts amendatory thereof, gave notice of those respects in which the charter and the acts amendatory thereof were proposed to be amended by the act. The notice required by the language of the Constitution in question under this assignment needs not to be wholly set out in the caption; for, if the caption and the body of the bill taken together give notice of the legislation proposed, the requirement of this portion of the Constitution is met; that is to say, under our decisions, where the title to the act plainly and unmistakably expresses the subject and purpose of the legislation proposed by the act, it is not necessary that the details of the act, the purpose of which is to repeal, revive, or amend former laws, shall be set out in the caption of the act. It is entirely sufficient if the caption state the subject or purpose or object of the legislation clearly, and the details or manner of the proposed repeal, revivor, or amendment be set out in the body of the act, so that the legislative intent may be gathered from the words used. Luehrman v. Taxing District, 2 Lea, 425; Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75; Railroad v. Crider, 91 Tenn. 494, 19 S.W. 618; State v. Yardley, 95 Tenn. 553, 32 S.W. 481, 34 L. R. A. 656.

The character of the act of 1911 is wholly amendatory. The subject on which it was designed to operate was the charter of the city of Chattanooga, which consisted at the time of the introduction of the act of 1911, of the original act of incorporation, and all acts amendatory thereof, howsoever numerous the amendatory acts might be. State v. Wilson, 12 Lea, 247; Hyman v. State, 87 Tenn. 109, 9 S.W. 372, 1 L. R. A. 497; State v. Algood, 87 Tenn. 163, 10 S.W. 310; Goodbar v. Memphis, 113 Tenn. 35, 81 S.W. 1061.

The act of 1911 does not, by its caption, purport to revive or to repeal any former law. It does not in its body revive any former law, nor does it in its body expressly repeal any former law. It does by its section 27 continue in full force and effect all provisions of the then present charter of the city of Chattanooga, and the acts amendatory thereof, which are not in conflict with the provisions of the act of 1911, and by the effect of its provisions and its twenty-eighth section it does manifest a legislative intent to accomplish a repeal by implication of all acts and parts of acts in conflict with its provisions. Its twenty-eighth section, under our decisions, cannot, however, be held to be an express repeal, and the failure to give notice of this implied repeal in the caption did not render the amending act obnoxious to the requirement of the Constitution now under consideration. State v. Yardley, 95 Tenn. 559, 32 S.W. 481, 34 L. R. A. 656.

It is insisted on behalf of complainants that the caption to the act of 1911 should have recited the title or the substance of the sundry acts passed from time to time creating a form of government for the city of Chattanooga. This contention is unsound. Goodbar v. Memphis, 113 Tenn. 35, 81 S.W. 1061, and other authorities already cited in a former part of this opinion.

The first assignment of error is therefore overruled.

The second assignment of error is based on the same words of the Constitution as the first assignment, but under the second assignment it is insisted that the act is invalid because, as claimed, it "amends, adds to, and changes the powers and duties of the election commissioners created by general law" (chapter 16 of the Acts of 1897), without referring, either in the caption or body of the act, to said act thereby amended, and because it amends the act of 1901 (chapter 432) and acts amendatory thereof, which fix the salary of the judge of the city court and the salary of the city attorney, without reference in the caption or in the body of the act to said acts, and because it amends the general election law above referred to, which specifically provides the terms and conditions upon which any person may become a candidate for office, may have his name printed upon the official ballot, whether state, county, or municipal without reference in the caption or body of the act to the act thus amended. As a matter of fact, we fail to find in...