Williams v. Mabry

• Decision Date: 13 June 1940
• Citation: 141 S.W.2d 481
• Parties: WILLIAMS et al. v. MABRY, County Judge, et al.
• Court: Tennessee Supreme Court

141 S.W.2d 481

WILLIAMS et al. v. MABRY, County Judge, et al.

Supreme Court of Tennessee.

June 13, 1940.

Appeal from Chancery Court, Hardin County; Tom C. Rye, Chancellor.

Suit by H. M. Williams and others against E. E. Mabry, County Judge, and others, attacking constitutionality of act creating the office of county attorney in particular counties. From an adverse decree, complainants appeal.

Affirmed.

Ross & Ross, of Savannah, for plaintiffs.

No attorney for defendants.

McKINNEY, Justice.

By the bill complainants, some of whom are taxpayers and others are solicitors representing the state and county in numerous pending tax suits, attack the constitutionality of Chapter 313, Private Acts of 1939, which we copy herein in full as follows:

"An Act to create the office of County Attorney for counties in the State of Tennessee having a population of not less than 16,200, nor more than 16,230 according to the Federal Census of 1930, or any subsequent Federal Census; to fix the term and salary of said office, and to prescribe the duties and qualifications thereof.

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That there is hereby created the office of County Attorney for counties in the State of Tennessee having a population of not less than 16,200, nor more than 16,230 according to the Federal Census of 1930, or any subsequent census.

"Section 2. Be it further enacted, That the Governor shall designate and appoint the first incumbent, or incumbents for said office, or offices, to serve in such capacity until the first Monday in January, 1940, at which time the Quarterly County Court in all counties of Tennessee to which this Act shall apply shall elect, or appoint a successor to the said office of County Attorney for a term of two (2) years and at the end of each two (2) year term, the said Quarterly County Court in all counties of Tennessee to which this Act shall apply, shall elect, or appoint a successor and the Clerk of said Quarterly County Court shall make an entry upon the minutes of said Court the proceedings had in the election, or appointment of the County Attorney and shall administer to each incoming County Attorney the oath required of all County Officials.

"Section 3. Be it further enacted, That the salary of said office shall be Twelve Hundred ($1200.00) Dollars per annum, payable monthly, out of the general funds of the county, upon a warrant drawn by the County Judge upon the County Trustee.

"Section 4. Be it further enacted, That it shall be the duty of said County Attorney to attend to and transact all the legal business of the county, either in Court, or otherwise; to advise any and all county officials upon matters pertaining to their respective offices and to represent the county in all legal matters, including the collection by suit, or otherwise all delinquent taxes due the county, or that may become due the county in the future and he shall represent the county in all suits now pending in the Courts for the collection of delinquent State and County taxes and any and all fees allowed as attorneys fees under the general statutes, or otherwise for the collection of delinquent taxes shall be collected and receipted for by the County Attorney and remitted, or deposited with the County Trustee to be by him placed to the credit of the general county fund.

"Section 5. Be it further enacted, That said County Attorney shall be a resident of the county in which he serves as such and shall be a duly licensed practicing attorney before the Courts of Tennessee.

"Section 6. Be it further enacted, That all laws, or parts of laws in conflict with this Act be and the same are hereby repealed, and this Act shall take effect from and after its passage, the public welfare requiring it.

                    "Passed February 20, 1939
                                "John Ed O'Dell
                            "Speaker of the House of
                                   Representatives
                                "Blan R. Maxwell
                               "Speaker of the Senate
                   "Approved Feb. 27, 1939.
                                 "Prentice Cooper,
                                            "Governor."
                

It is insisted that the Act violates Article 11, Section 17, of the Constitution, which provides:

"No county office created by the Legislature shall be filled otherwise than by the people or the County Court."

The chancellor, after eliding certain provisions of the Act, sustained its validity. Complainants have appealed to this court and by appropriate assignments of error insist that the Act is invalid.

It will be noted that three sessions of the county court intervened between the date that the Act became effective and the term at which the court was to elect a county attorney under its provisions.

It is also averred in the bill that the Governor on April 8, 1939, commissioned a member of the Hardin County bar to act as county attorney until the office was filled by the county court. The chancellor held this temporary appointment invalid, but held that so much of the Act as authorized such appointment could be elided without doing violence to the chief purpose which the Legislature had in mind in its enactment, namely, the creation of the office of county attorney. This conclusion of the chancellor is fully sustained by our decisions. Where such an invalid provision is incidental and subordinate and can be stricken without in any sense impairing the efficacy of the act this will be done. Butler v. McMahan, 166 Tenn. 511, 515, 64 S.W.2d 1; Scott v. Nashville Bridge Co., 143 Tenn. 86, 121, 122, 223 S.W. 844; Galoway v. State, 139 Tenn. 484, 202 S.W. 76, L.R.A. 1918D, 970; Richardson v. Young, 122 Tenn. 471, 522, 523, 125 S.W. 664; Fite v. State ex rel., 114 Tenn. 646, 88 S.W. 941, 1 L.R.A.,N. S., 520, 4 Ann.Cas. 1108; State ex rel. v. Cummins, 99 Tenn. 667, 42 S.W. 880; Reelfoot Lake Levee District v. Dawson, 97 Tenn. 151, 36 S.W. 1041, 34 L.R.A. 725; Burkholtz v. State, 16 Lea 71, 84 Tenn. 71; Tillman v. Cocke, 9 Baxt. 429, 68 Tenn. 429, and numerous other cases.

This court, as constituted at the present time, has not passed directly upon the question of eliding an invalid provision in an act under the two-subject clause of the Constitution. Const. art. 2, § 17. In Heymann v. Hamilton Nat. Bank, 151 Tenn. 21, 28, 266 S.W. 1043, 1045, it was said: "Some of us do not believe that elision is permissible to save an act otherwise bad under the two-subject clause of the Constitution." Upon this question the opinions of our predecessors are not harmonious, there being a number of decisions supporting both theories. It is insisted in the present cause that the provision providing for a temporary appointment is a subject not covered by the caption, and hence the body of the Act is broader than the title. The title of the Act is "to create the office of County Attorney." The method by which the office thus created is to be filled, as set forth in the body of the Act, has a natural connection with the title and cannot be said to be foreign to or incongruous therewith.

This court in numerous decisions has held that the provision as to the one subject of bills is to be liberally construed so as not to embarrass legislation. Chumbley v. People's Bank & Trust Co., 166 Tenn. 35, 60 S.W.2d 164; Goetz v. Smith, 152 Tenn. 451, 278 S.W. 417; House v. Creveling, 147 Tenn. 589, 250...