Waldauer v. Britton

• Decision Date: 05 March 1938
• Parties: WALDAUER et al. v. BRITTON et al.
• Court: Tennessee Supreme Court

113 S.W.2d 1178

172 Tenn. 649

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. [113 S.W.2d 1179]

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. [113 S.W.2d 1180]

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 [96 Am.Dec. 350]; 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 [109 Cal. 504], 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. 451, 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...