Whitthorne v. Turner

• Decision Date: 09 April 1927
• Parties: WHITTHORNE, COUNTY JUDGE, v. TURNER, COUNTY SUPERINTENDENT.
• Court: Tennessee Supreme Court

293 S.W. 147

155 Tenn. 303

WHITTHORNE, COUNTY JUDGE, v. TURNER, COUNTY SUPERINTENDENT.

Supreme Court of Tennessee.

April 9, 1927

Appeal from Chancery Court, Maury County; Thomas B. Lytle Chancellor.

Suit by W. C. Whitthorne, County Judge, against Gordon H. Turner County Superintendent. From decree rendered, both parties appeal. Decree modified, and, as modified, affirmed.

Pride Tomlinson, Co. Atty., of Columbia, for appellant.

J. B Garner, of Columbia, for appellee.

COOK J.

The defendant was elected superintendent of public instruction by the Maury county quarterly court at the January term, 1925. Before the election the court fixed the salary of the county superintendent at $1,150 a year, without reference to the tenure of office. The pay from the county, supplemented by that from the state under chapter 118, Acts of 1921, would make the salary $2,150 a year. The defendant assumed the office, discharged its duties, and received pay from the county upon monthly warrants issued by the county judge throughout the year 1925.

At the July term, 1925, the quarterly court entered an order declaring "that members of the board of education be paid $4 a day (chapter 115, § 6, Acts 1925), and that the secretary of the board of education while away from office on official business be paid 8 cents per mile. This to come out of the $500 fund."

Under chapter 236, § 3, Acts of 1907, the county superintendent is ex officio secretary of the board of education. This provision of the Act of 1907 was not carried into chapter 115, Acts of 1925.

The superintendent of public instruction submitted to the July term of the court a budget as required by section 6, subsec. 25, c. 115, Acts of 1925, in which items of $1,150 salary of the county superintendent, and $500 for members of the board of education and secretary, appear. The order allowing the secretary 8 cents a mile out of the $500 evidently refers to the $500 item of the budget.

At the January term, 1926, the court ordered that:

"The sum of $500 set aside in the school budget for traveling expenses of the county superintendent, which he could not legally expend, be added to his salary--that is to say, that his salary be increased $500 for the current year, and $500 to be added for the past year."

This action was brought under chapter 29, Acts of 1923, to test the legality of the above-mentioned appropriations. The cause was heard upon defendant's demurrer to the bill. The chancellor held that when the quarterly court fixed the salary of the superintendent at the July term, 1925, under chapter 25, § 8, Acts of 1873, and amendatory acts (see Shannon's Code, § 1410), that the power delegated to the court was exhausted and authority to increase the pay of the defendant during the term was lacking. The chancellor sustained the resolution of July, 1925, not as an increase of salary, but as an allowance for expenses incurred in the performance of official duty.

Both parties appealed. The defendant insists that the addition of $500 to the salary for 1926, as well as the addition to the pay for 1925, made by the court at the January term, 1926, were both valid. Complainant insists that the resolution of the July term, 1925, whether construed as an increase of pay or an allowance of expenses, was unauthorized.

The statute (section 1410, Shannon's Code), provides that the superintendent shall receive such pay for his services as may be allowed by the county court, to be paid upon the order of the chairman of the county court. No constitutional or statutory inhibition forbids the increase or diminution of the compensation of the county superintendent during the term of office, and in the absence of such restriction the salary may be increased or diminished. Hunter v. Conner, 152 Tenn. 273, 274, 277 S.W. 71; Haynes v. State, 3 Humph. 480, 39 Am. Dec. 187. But after the right of compensation vests, the amount could not be added to or subtracted from. The court, in the exercise of power conferred by statute, fixed the salary of the superintendent at the January term without reference to 1926. Before the salary of 1926 was declared by the court, the justices could, in the exercise of their unexhausted power, determine the compensation to be paid by the county for the succeeding year. Having exhausted the power in fixing the salary for 1925, the court could not afterwards increase or diminish it. The statute confers no power upon the court to vote a gratuity or an addition to a salary that has become vested. The court could no more do this than it could require the superintendent to restore to the treasury a portion of the salary which he had earned. Fundamental principles of public policy forbid such interference with the vested rights of the official and such improvident freedom with the public revenues.

Chapter 115, Acts of 1925, called the General Education Bill purports to embody laws regulating the the public school system. The duties of the county board of education are set forth at section 6, p. 321, and at page 324, subsec. 1 et seq. the duties of the county superintendent are...