Wright v. Nashville Gas & Heating Co.

• Decision Date: 04 May 1946
• Citation: 194 S.W.2d 459,183 Tenn. 594
• Parties: WRIGHT v. NASHVILLE GAS & HEATING CO.
• Court: Tennessee Supreme Court

194 S.W.2d 459

183 Tenn. 594

WRIGHT v. NASHVILLE GAS & HEATING CO.

Supreme Court of Tennessee.

May 4, 1946

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Suit under the Declaratory Judgment Act, Code 1932, § 8835 et seq., by Nolen L. Wright, as taxpayer and property owner of Nashville, against Nashville Gas & Heating Company, to have charter and franchise of the defendant declared to be invalid insofar as the corporate documents were construed to sell natural, as distinguished from manufactured, gas, in the City of Nashville. From decree sustaining defendant's demurrer to the bill of complaint and dismissing the bill, the complaint appeals.

Affirmed.

GAILOR Justice.

The original bill in this cause was filed in the Chancery Court of Davidson County, under the Declaratory Judgment Act, Code 1932, § 8835 et seq., by the complainant, as a taxpayer and property owner of Nashville, seeking to have the charter and franchise of the defendant, Nashville Gas & Heating Company declared to be invalid and illegal in so far as these corporate documents were construed to empower the defendant to sell natural, as distinguished from manufactured gas, in the City of Nashville.

Before the filing of the bill, the City of Nashville had construed the charter and franchise to give the power, as had the State Railroad and Public Utilities Commission, but the Nashville Gas and Heating Company, alone, was made a party defendant to the bill. The defendant demurred to the bill on several grounds, but in view of our disposition of the case, we need to consider only the first. It is:

'1. That complainant is not entitled to bring or maintain this suit because:

'(a) He files such solely as a citizen and taxpayer, without showing or alleging special injury or interest not common to the body of citizens.

'(b) Complainant does not allege any right or claim any redress dependent upon the validity or invalidity of the Ordinance granting the franchise of defendant.

'(c) The laws of Tennessee confer upon the duly elected representatives of the citizens of the municipal corporation of Nashville the sole and only right to appeal to the courts for redress in cases of this kind.

'(d) Complainant fails to allege a demand upon, and refusal by, the duly elected authorities of the City of Nashville, to enforce the rights of the City of Nashville, if any, which allegation is a prerequisite to the bringing of a suit in a representative capacity as a taxpayer.'

Devoting his opinion to a discussion of this ground of the demurrer, the chancellor sustained it and dismissed the bill, holding not only that the complainant had failed to show 'special interest' or 'special injury,' but that he had failed to join as defendant, representatives of the City of Nashville who were indispensible parties to justify a declaration.

From this action of the chancellor the complainant appeals and assigns errors.

If the chancellor was right in sustaining this first ground of the demurrer, there is no pleading before us on which a 'justiciable issue' is presented to limit and define the scope of a declaration. Therefore, until it is determined that the complainant, either as a taxpayer or property owner, is legally entitled to the declaration he seeks, there is no need to recite the other questions presented.

Here, a declaration and injunctive relief are sought against a quasi-public corporation by a complainant who alleges only that he is a taxpayer and property owner of a municipality which has vested certain franchise rights in the corporation. The municipal authorities by whom the rights were vested, as the complainant asserts illegally, are not made parties to the suit. Since, therefore, complainant sues only as a taxpayer and property owner of the municipality, asserting rights limited to his status as such taxpayer and property owner, we think the municipal authorities were necessary and indispensible parties to secure an effectual or enforcible declaration on the matters alleged in the bill. Gibson's Suits in Chancery, 1937 Ed., secs. 100-102; Code sec. 8845. In the absence of the joinder of the city, or its representatives, we doubt that the complainant, merely as one of its taxpayers and property owners, has any right as such, to maintain an independent action against even a quasi-public corporation on a matter of contract with the city.

The non-joinder of necessary parties is fatal on the question of 'justiciability' which, in a suit for a declaratory judgment, is a necessary condition of judicial relief. Goetz v. Smith, 152 Tenn. 451, 464, 278 S.W. 417; State ex rel. v. Board of Com'rs of Wyandotte County, 128 Kan. 516, 279 P. 1; Adams, Judge, v. Slavin, 225 Ky. 135, 7 S.W.2d 836; Bouchard, Declaratory Judgments, p. 29.

The complainant alleges that he has not made the city officials parties defendant, because he is unwilling to embarrass them by so doing. In his opinion, the chancellor says in this connection:

'This Court has reached the conclusion that the mere allegation of embarrassment to the City officials, without an allegation that their interests were antagonist, is not sufficient to permit the complainant to maintain this suit.'

We would go farther and say that as embarrassment of the city officials is a necessary incident of the relief sought, that Code sec. 8845, as well as a decent regard for the sensibilities of the municipal authorities, demands that they have their day in court, before their official action is publicly declared to be illegal and set aside. The pertinent language of Code sec. 8845 is as follows:

'When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. * * *.'

The complainant frankly says in his argument:

'As set out in the foregoing Statement of the Case, it is our view that the single question presented on this appeal is whether or not the Chancellor was correct in holding that a taxpayer of the City, suing on behalf of himself and all other taxpayers, cannot bring a suit to enforce the property rights of the City which the administrative officials are seeking to dispose of illegally, under all the facts and circumstances alleged in the bill of complaint.' (Our emphasis.)

It seems to us elementary that when the avowed purpose of a bill is to restrain the illegal disposition of certain municipal property rights by the city's administrative officials, that these officials are such parties as have a very definite interest in the proceedings under Code sec. 8845, supra.

The right of an individual taxpayer to maintain a suit to restrain public officials in the discharge of their administrative duties, is limited to cases where such action would increase the tax burden and give complainant as a taxpayer, a special interest in preventing the proposed municipal action, and which is not such interest as those citizens who are not taxpayers, also have in the proposed municipal action. Patton v. Chattanooga, 108 Tenn. 197, 65 S.W. 414. Many of our cases announce this rule, but we think it sufficiently illustrated by the two taxpayers' suits cited and relied on by the complainant, himself. These are--Burns v. City of Nashville, 142 Tenn. 541, 221 S.W. 828, and Malone v. Peay, 157 Tenn. 429, 7 S.W.2d 40.

In both these cases, the complainant taxpayer, by the prayer of his bill, sought a repayment into the public treasury of funds expended, as it was alleged, illegally, by public officials who were made defendants to the bill. Obviously, such repayment...