Waldauer v. Britton

• Decision Date: 05 March 1938
• Citation: 113 S.W.2d 1178
• Parties: WALDAUER et al. v. BRITTON et al.
• Court: Tennessee Supreme Court

113 S.W.2d 1178

WALDAUER et al. v. BRITTON et al.

Supreme Court of Tennessee.

March 5, 1938.

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

Suit by Abe D. Waldauer and others against John W. Britton and others to have a statute declared unconstitutional. From a decree for complainants, defendants appeal.

Reversed, demurrer sustained and bill dismissed.

Edwin F. Hunt and Dudley Porter, Jr., Asst. Attys. Gen., and Charles L. Cornelius, Thos. H. Malone, Wm. J. Wade, and J. H. Ballew, all of Nashville, for appellants.

K. T. McConnico, Roberts & Roberts, and J. G. Stephenson, all of Nashville, and Charles M. Bryan and F. H. Gailor, both of Memphis, for appellees.

McKINNEY, Justice.

By chapter 2, Public Acts of the Third Extraordinary Session of 1937, the Legislature amended sections 1955, 1956, 1957, 1958, 1963, and 1964 of the Code, which relate to the State Board of Elections. The principal amendment added three new members to the board, to be chosen by the Secretary of State, the Comptroller, and the Treasurer, or a majority of them. The three old members of the board were continued in office during the terms for which they were elected, the provision as to their compensation was not changed, but their duties, to some extent, were diminished.

The bill herein was filed by two of the old members of the board for the purpose of having said amendatory act declared unconstitutional.

Preliminarily, it may be stated that complainants are estopped from questioning the validity of the law under which they were elected, they having acted thereunder and accepted its benefits. In Collier v. Montgomery County, 103 Tenn. 705, 714, 715, 54 S.W. 989, 991, it is said:

"In Black, Const.Law, § 5, it is said: `In a country governed by a written constitution, which is of supreme power over the lawmaking power, and to which all ordinary legislation must bend, an unconstitutional law is void and of no effect, and in fact is not law at all; yet so long as it stands on the statute book, unrepealed, it will have the presumptive force of law, unless the proper courts have pronounced its invalidity.' And again: `Persons may be estopped from denying the constitutionality of a statute by participating in procuring its passage, by acquiescing in it after its passage, or by accepting benefits under it, although it may be invalid as to all other persons; and an individual has no right to complain that a statute is unconstitutional after he has endeavored to take benefits under it, to the injury of others.' Black, Const. Law, § 35, citing Ferguson v. Landram, 5 Bush [Ky.] 230 ; Hansford v. Barbour, 3 A. K. Marsh. [Ky.] 515.

"In the case of People v. Bunker, 70 Cal. 212, 11 P. 703, it is said an officer who has acted and received money under an act cannot contest its constitutionality.

"Again: `One who has accepted an office having at least a potential existence, and has received the emoluments of it, is estopped to show, to his own advantage, that the office had never been legally created, because it was not done in a proper mode, as by ordinance.' Buck v. Eureka , 42 P. 243, 30 L.R.A. 409."

The general rule, supported by many authorities, is thus stated in 11 American Jurisprudence, 767:

"Estoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens."

The rule was applied by this court in Saylor v. Trotter, 148 Tenn. 359, 255 S.W. 590.

Likewise, a corporation cannot attack as unconstitutional the law under which it claims to exist as a corporation. Nolensville Turnpike Co. v. Quinby, 27 Tenn. 476, 8 Humph. 476.

The principal attack upon the act is based on the alleged lack of approval by a constitutional majority in the House of Representatives. This question was ruled adversely to complainants at our last opinion session in the case of State ex rel. v. Shumate, 172 Tenn. ___, 113 S.W.2d 381.

It is next insisted by complainants that the amendatory act takes from them certain property rights, in that it deprives them of the functions of their offices in violation of article 1, § 8, of the State Constitution and the Fourteenth Amendment to the Federal Constitution. In other words, that they have not as much power or authority under the amendatory act as they possessed under the original act. They cite no authority that supports this insistence, and such is not the law. They do cite a long line of decisions by this court to the effect that a colorable change in the form of government for the purpose of putting one set of men out of office and another set in office is unconstitutional. In each of those cases some official, or officials, had been legislated out of office. These cases have no bearing upon the question we are considering, since complainants have not been deprived of their office. It should be borne in mind that the State Board of Elections is not a constitutional office, but one created by the Legislature, just as it has brought into being numerous executive and administrative boards and commissions to administer the affairs of state. The legislative power of the state is unrestricted except by constitutional limitations. Bowling v. Carnahan, 171 Tenn. 26, 100 S.W.2d 232; Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229; Motlow v. State, 125 Tenn. 547, 145 S.W. 177, L.R.A.1916F, 177; Wright v. Cunningham, 115 Tenn. 445, 91 S.W. 293; Dayton, etc., Co. v. Barton, 103 Tenn. 604, 53 S.W. 970; Henley v. State, 98 Tenn. 665, 41 S.W. 352, 1104, 39 L.R.A. 126; Davis v. State, 3 Lea 376, 71 Tenn. 376, 377. Says the Supreme Court of Alabama, in White v Decatur, 225 Ala. 646, 144 So. 873, 874, 86 A.L.R. 914, 916:

"It is well settled that the power of the Legislature, except as restrained by the Constitution, is supreme in the enactment of statutory law and in the creation of subordinate governmental agencies, and in prescribing their powers and duties."

In 46 C.J. 1035, 1036, it is said:

"The legislature with power to create an office may fix its duties, and generally may fix the duties of offices except as inhibited by the constitution. An officer accepting office does so subject to the possibility that his duties may be increased or diminished, and in the absence of constitutional restriction the legislature may do so at its pleasure. Thus the legislature may, from time to time, change the duties of offices created by itself. The legislature, moreover, may, within reasonable limits, increase or abridge the duties of a constitutional office, but they cannot be so changed as to destroy the powers of the office or essentially to alter it."

As to whether a particular function of the state requires one or a dozen persons to administer it is a matter for the Legislature to determine. Since a private corporation increases or reduces the number of its officers and the membership of its board of directors to meet changed conditions, we see no reason, upon principle, why a public corporation should not be accorded the same privilege.

Certainly, the power to create the agency and prescribe its duties and powers carries with it the authority to reduce or increase the membership of such agency and to diminish or increase its duties and powers, from time to time, as the exigencies require. It is not unusual for a Legislature or Congress to increase the membership of a court, as was done by the Legislature of this state when the act creating the Court of Chancery Appeals, Acts 1895, c. 76, was amended by chapter 82, Acts 1907, whereby the name was changed to the "Court of Civil Appeals," and the number of judges increased from three to five. The validity of the act was upheld by this court in Memphis St. Railroad Co. v. Byrne, 119 Tenn. 278, 104 S.W. 460. By chapter 100, Pub.Acts 1925, the name of the Court of Civil Appeals was changed to "Court of Appeals," and its membership increased from five to nine. In Hancock v. Davidson County et al., 171 Tenn. 420, 435, 436, 104 S.W.2d 824, 829, it is said:

"There has been some intimation that a statute transferring the authority and jurisdiction of justices of the peace to another court could only be sustained if applicable to the whole state. Such an idea, however, was long ago rejected in this state. We have a number of special courts in particular counties to which the jurisdiction of the circuit in some instances, of the chancery court in other instances, of the criminal court in other instances, has been transferred. In a few instances the jurisdiction has been transferred from other courts to a special court set up for certain districts of the particular county. See Ellis v. State, 92 Tenn. 85, 20 S.W. 500; Wilcox v. State, 50 Tenn. (3 Heisk.) 110, and the note of Judge Nicholson to the latter case Id., p. 114.

"Prescott v. Duncan, 126 Tenn. 106, 137, 148 S.W. 229, very elaborately considers the constitutional prerogatives of the justice of the peace and shows that they are very few — that his jurisdiction and powers are largely subject to the will of the Legislature."

By chapter 237, Private Acts 1911, the administration of the affairs of Shelby county were transferred from the county court to a new board of commissioners. This court, in Prescott v. Duncan, supra, sustained the constitutionality of the act, and expressly held that the Legislature may deprive the county court of all powers not conferred upon it by the Constitution, and that such transfer of power did not deprive those officials of any property rights. This ruling was approved and followed in the recent case of Mel Troutman et al. v. J. D. (Val) Cripper et al., Knox Equity, decided at Nashville on May 8, 1937,^* in which the court sustained an act of the Legislature transferring the administration of the affairs...