118 Tenn. 390 | Tenn. | 1907
delivered the opinion of the Court.
The hill in this case was filed by certain persons who were elected as officers of the city of Memphis under its charter, as it existed prior to March 27, 1907, against certain other persons claiming to he officers of the same city by appointment of the governor under an act passed on the date last mentioned.
. The purpose of the hill was to have the above-mentioned act of March 27,1907 (Senate Bill No. 289), declared unconstitutional and void.
It is alleged that the act referred to was first introduced as an independent act, imposing upon the city of Memphis a new charter^ and that thisAct bore the following title:
“An act to grant a new charter to the city of Memphis, to repeal an act entitled ‘An act to establish taxing districts in the State, and to provide the means of local government for the same ’; and being chapter 11 of the Acts of 1879, and all the acts amendatory thereof, constituting the charter of the city of Memphis, and to repeal chapter 54 of the Acts of 1905, entitled ‘A bill to be entitled “An act to amend an act entitled ‘An act to es*402 tablish taxing districts in this State and to provide the means of local government for the same,”” the same being chapter 11 of the Acts of 1879 and all the acts amendatory thereof, constituting the charter of the city of Memphis.”
It. is further alleged that at the time the bill bearing the above caption was introduced there was pending in the legislature a bill known as the “Pendleton Bill,” with every prospect of the latter passing and becoming a law; that the result of passing the new charter as an independent act, the Pendleton Bill becoming a law in the meantime or thereafter, would be to prohibit the sale of intoxicating liquors in the city of Memphis, and that in order to avoid this result, the bill as originally introduced was withdrawn by the parties in charge of the legislation, and a new bill — that is, Bill No. 289— was introduced, purporting in its caption to be an amendment of the former act, rather than a new and independent one. A copy of the bill, the title of which is above given, as first introduced, was exhibited with the complainants’ bill in equity in the present case, and on comparison it appears to be substantially the same as the act of March 27, 1907 (Senate Bill No. 289), under examination herein.
It is alleged that, notwithstanding the caption of the act of March 27, 1907, purporting an amendment of the former charter of Memphis, the body of the bill shows a new and independent scheme of. legislation covering the
It is further alleged that the act is; void because several special matters embraced in the body of it are not covered by the title, and for these reasons it is in violation of article 2, section 17. These special matters need not be set out at this point, but will be presently referred to with more particularity.
(it is alleged that, “if the said defendants are permitted to carry out their unlawful purpose of the government of the said city, complainants will be deprived of the benefits and emoluments of the offices to which they have been justly elected and which they are lawfully entitled to hold and enjoy until the expiration of their re-, spective terms;” that they are legally required to hold their various offices until the expiration of their terms, and their successors are duly elected and qualified; that “they will suffer irreparable injury on account of the illegal acts of the defendants,'unless said defendants are restrained by the court,- and they have no adequate remedy at law.”
These allegations were made, following other allegations to the effect that the defendants were threatening to take charge of the city government under the
The hill was filed by James H. M'alone, mayor of the city, and B. EL Henning, a member of the board of fire and police commissioners, George 0. Love, a member of the board of public works and chairman of that board, J. S. Dunscomb, R. A. Utley, E. H. Crump, and Frank H. Hill, members of the board of public works, and A. C. Floyd, judge of the city court; and it was alleged that under the charter of the city as it existed prior to the act of March 27, 1907, the term of each of these officers ran until January 11, 1910, except that of George C. Love, which latter expired in January, 1908.
The bill was filed against the following persons, all appointed by the governor, pursuant to the terms of the said act of March 27, 1907, viz: J. J. Williams, John T. Walsh, David S. Rice, E. B. Le Master, and Sidney M. Neely, members of the commission provided for in the said act, J. J. Williams having been appointed president, John T. Walsh, vice president, and the defendants David S. Rice, E. B. Le Master and Sidney M. Neely members of the said commission, and the defendant George G. Alban, appointed judge of the court designated in the act as the “Corporation Court.”
The bill alleged that these defendants were about to take charge of the city government, thereby ousting the complainants; that said contemplated act was wrongful
There was a prayer for process against the defendants, and for a temporary injunction against interference with the city government until the matter could he heard by the chancellor, and that on final hearing the injunction be made perpetual.
The bill was filed April 24, 1907, and on the same day a temporary restraining order was issued against, the defendants. On the 26th of the same month the chancellor heard the application for a temporary injunction, and disallowed it on May 4th, and on that day he vacated the temporary restraining order.
On the 6th of May the defendants filed a demurrer to the bill, assigning numerous grounds, all of which are embraced in the first one, which is that there is no equity in the bill. On the same day the chancellor sustained the demurrer and dismissed the bill. From this decree the complainants prayed and obtained an appeal to this court and have here assigned errors.
The errors assigned are as follows:
“The chancellor erred (1) in not 'declaring the act in question unconstitutional because it repeals the former charter of the city of Memphis, while purporting in the caption only the amendment of it; (2) in holding that the act in question was only an amendment to the former charter, and not a new charter for the city of Memphis; (3) in holding that the legislature had the power to remove municipal officers without abolishing their offices;*406 (4) in holding that the act in question is in all respects constitutional, and. in denying complainants the relief prayed for.”
■ The assignments present, from different points of view, the single question whether the act of March 27, 1907, is unconstitutional in whole or in part; but the solution of this general question requires the consideration and disposition of many particular contentions advanced by the parties. We shall not take up these controversies in the order in which they are presented in the assignment of errors or in the briefs of counsel, hut ih that order which seems to us the most convenient.
It is alleged in the bill that the act of March 27, 1907, violates the constitution in the following particulars, viz.:
“(1) In section 2 of article 1 of said act it undertakes to extend the boundaries of said city and annex new territory thereto.
1 “(2) In section 8 of article 1 it is provided that said city is to ‘have and exercise within the city limits and for two miles outside thereof all governmental powers and police powers, subject to the limitations prescribed by the constitution and laws of the State and of the United States.’
“Within the two-mile strip over which the city of Memphis is thus given all governmental powers, there are two other municipalities, Lenox and Binghampton, duly incorporated by the State of Tennessee and each having a full quota of officers and all the usual agencies and*407 instrumentalities of city government, and being now in tbe full exercise thereof.
“The above provisions, if held valid, will certainly result in serious conflict between the two municipalities above named and the city of Memphis. r>„' "* ^ J
“(3) In section 3 of article 3 it is provided:
“ ‘Sec. 3. Be it further enacted, that the city, through its officers and agents, may at all reasonable times, with-, in the city and within ten miles of the city limits, enter into and examine all dwellings, lots, yards, inclosures and buildings, cars, boats and vehicles of every description, to ascertain their condition for health, cleanliness and safety; take down and remove buildings, walls or superstructures that are or may become dangerous, or require owners to remove or put them in a safe and secure condition, at their own expense; may direct and regulate the building and maintenance of partition, parapet and fire walls, partitions, fences, ovens, smokestacks, stove flues, hot air flues, fireplaces, boilers, kettles, stovepipes, and the erection and cleaning of chimneys; shall provide for the safe construction and repair of all private or public buildings within the city; compel persons to aid in extinguishing fires, or in the preservation of property likely to be destroyed or stolen.
“ ‘And the president, whenever in his opinion a nuisance exists upon public or private property, or whenever a nuisance has been so declared by ordinance, is authorized to abate and remove such nuisance and the cause*408 thereof in a summary manner, at the cost of the owner or occupant of the premises where the nuisance or cause thereof may he, and for that purpose may enter and take possession of any premises- or property where such nuisance may exist or be produced/
“This ten-mile strip includes the two cities above mentioned and much outside territory, where there are now living probably twenty thousand people, over all whose dwellings, buildings, cars, boats, and vehicles of every description the city of Memphis is thus given absolute control, with power to destroy the same, and direct and regulate the erection or repair of. their buildings, at the owner’s expense, through its officers and agents in the selection of which these outside people have no voice or vote whatever.
“Moreover, under this provision, one individual, namely, the president of the commission, is authorized, ‘whenever in his opinion a nuisance exists,’ to abate the same by a summary destruction of the property at the cost of the owner or occupants of the premises. Complainants are advised, and so charge, that this section also violates section 8 of article 1, and section 8 of article 11 of the constitution of Tennessee.
“(4) In section 8 of article 1 the city of Memphis is given the power ‘to establish and maintain public schools.’
“Complainants are advised that the city government as it exists under the acts which the caption of Exhibit C. purports to amend, had absolutely no authority over*409 the public schools within its limits; that said schools were under the control and authority of a' separate public corporation created by the acts of 1868 and 1869, known as the ‘Board of Education of Memphis.’ Said board consists of five members elected by the people under laws entirely different and disconnected from the laws constituting the charter.of Memphis.
“They are also advised that the power given the city of Memphis to establish and maintain public schools not only introduces an entirely new afid vitally important subject, but one that is most dangerous and disturbing, and which, if attempted to be exercised, would inevitably result in the complete disorganization, if not destruction, of the excellent system of public schools now existing in the city of Memphis, which has, so far, been purposely kept entirely free from any interference or control of the city government.
“(5) That article 5 of said act, on the subject of revenue and taxation, contains several sections vitally material to the scheme of legislation set forth in said act which are clearly in violation of several provisions of the constitution of the State of Tennessee.
“(a) Section 11 of article 5 of said act.
“(b) Sections 23 and 24 of the'same article.
“These sections provide a new and different scheme or system for the assessment of the property from that provided in the general assessment act of 1903, and extend to certain corporations' rights and privileges denied to the body of the people of the city of Memphis. While*410 taxes on all other classes of property become delinquent on the first day of July, an exception is made in fay or of taxes on shares of stock in corporations, which do not become delinquent until the 1st day of September.
“These sections violate section 8 of article 1, section 8 of article 11, and section 17 of article 2.
“Complainants are also advised that sections 46 and 51 of article 5 of said act violate section 8 of article 1 and section 8 of article 11 of the constitution.
“Complainants are further advised, and so charge, that section 7 of article 8 of said act, which releases the city of Memphis from the obligation imposed by the general law of the State to furnish security in prosecuting appeals and writs of error in any judicial proceedings, is in clear violation of section 8 of article 11, as well as section 17 of article 2, of the constitution of the State.
“Complainants are further advised and so charge that sections 14, 15 and 22 of article 8 and subsection 37 of section 1 of article 3 of said act, under which commissioners of the city are authorized to hold any election for any lawful purpose in said city, and to ascertain and declare the result thereof, introduce an entirely new subject, which is in no way referred to in the caption of the act, and are in violation of the same provisions of the constitution last above referred to. These provisions of said act materially change the general election laws of the State, and authorize the five commissioners in control of the city to hold elections which were heretofore held by commissioners of registration under the laws applicable*411 to the entire State. The effect of these provisions, if valid, would he to authorize said commissioners, not only to hold all special elections in said city, but also to prescribe the rules and regulations governing the elections at which their successors are to be elected, and at which they themselves might and probably would be candidates for re-election.
“Complainants are advised, and so charge, that each one of the seven matters above named constitutes an entirely new subject, not referred to directly or indirectly in, or in any way connected with or suggested by, the title of the act, Exhibit C, and that each renders said act unconstitutional, null and void.”
Other special points of unconstitutionality insisted upon are the following:
In subsection 6 of section 1 of article 3 of the act, the municipal council is given exclusive power to license ferries and to regulate the same, and the landings thereof within the limits of the city, and to fix and prescribe the charges and fees for ferries. This is objected to' as unconstitutional in itself, and the introduction of a subject not covered by the caption.
In sections 37, 41, and 44 of article 5, which relate to revenue and taxation, there are several provisions Avhich cover State and county taxes. This, it is claimed, is the introduction of a new subject.
We shall now consider the foregoing several objections.
There is no force in the contention raised in respect of the boundaries. Every municipal corporation must have
- {We shall consider «together^ section 3 of article 1, concerning the two-mile strip,* and'kectidh^ 3 of article 3, concerning the ten-mile strip.
The provision upon this subject in the original taxing district act (chapter 11, p. 16, section 3, of Acts of 1879) and in the first amendment thereto (chapter 84, section 1, Acts of 1879), the first of which acts the present caption purports to amend, was as follows:
“Said government shall have the power to pass all laws to preserve the health of the taxing district; to define, prevent and remove nuisances within the taxing district; and for a distance of one mile outside of the same; to mate quarantine laws and enforce the same within ten miles of the taxing district.”
We are not aware that these special provisions of the acts referred to have ever been drawn in question. The acts themselves, with their several amendments, have been the subject of numerous adjudications, and, so far as questions have been made upon them, the acts have been upheld.
[In Chicago Packing Co. v. Chicago, 88 Ill., 221, 30 Am. Rep. 545, an act was upheld which conferred upon cities and villages the power to regulate establishments engaged in slaughtering animals for the distance of one
In the same volume (section 144) it is said by the author:
“The general nature and scope of the authority, as it is not infrequently bestowed, are well illustrated by a case in Maryland. By its charter the city of Baltimore was vested with full power and authority to enact all ordinances necessary to preserve the health of the city, prevent and remove nuisances, and to prevent the introduction of contagious diseases within the city and within three miles of the same.’ • Commenting on this provision of the charter, the court of appeals say: ‘The transfer of this salutary and essential power is given in terms as explicit and comprehensive as could have been used for such a purpose. To accomplish, within the specified territorial limits, the objects enumerated, the corporate authorities were clothed with all the legislative powers which the general assembly could have exercised. Of the degree of necessity for such municipal legislation the mayor and city council -of Baltimore were the exclusive judges. To their sound discretion is committed the selection of the means and manner (contributory to the end) of exercising the powers which they might deem requisite to the accomplishment of the objects of which they were made the guardians., “To prevent the intro*414 duction of contagious diseases within the city, and within three miles of the same,” they might impose heavy penalties on the captain, owner, or consignee of any ship or other vessel entering. the port of Baltimore, on hoard of which smallpox or other contagions diseases might prevail; or they might seek the accomplishment of their object by causing the vessel and all persons to be taken possession of and controlled until their purification and disinfection were effected, and impose on the captain, owner or consignee the payment or reimbursement of all the expenses incurred by such-proceedings; or they might adopt at the same time, both suggested remedies, if for the successful and faithful execution of their powers they deemed it necessary to do so’” — citing Harrison v. Baltimore, 1 Gill. (Md.), 264.
jfln section 354Í it is said:
“By-laws made by municipal corporations, with respect to a liberty or franchise granted them with local jurisdiction beyond the limits of the municipality, are as binding upon the persons going into the liberty as the by-laws of the city upon those who come within its walls.”
In 2 Abbott on Municipal Corporations, pp. 1383, 1384, it is said: •
“Municipal ordinances ’ or resolutions can have no extraterritorial force or effect, and this is true even in cases where a municipality may have' acquired property outside its geographical limits. ... It is, of course, within the power of the State legislature to authorize*415 subordinate corporations to pass ordinances or laws which shall have a restricted effect beyond their limits. This has been done in some cases for the purpose of enabling a particular municipal corporation to suppress nuisances detrimental to the public health and morals.” ! ' ;l ^ *
In 1 Dillon on Municipal Corporations, however, it is said:
“Eo implied power to pass by-laws, and no express general grant of the power, can authorize a by-law which conflicts either with a national or State constitution, or with the statute of the State, or with the general principles of the common law adopted or in force in the State.” Section 366.
The same author says:
“It is to secure and promote the public health, safety, and convenience that municipal corporations are so generally and so liberally endowed with power to prevent and abate nuisances. This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to authorize the extrajudicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not such. Speaking upon this subject in a very recent case, where a city, under authority to prevent and restrain encroachments on rivers running through it, commenced summary proceedings to remove a private wharf,*416 an eminent judge uses this language: ‘But the mere declaration by the city council that a certain structure was an encroachment or obstruction did not mate it so; nor could such declaration make it a nuisance, unless it in fact had that character. It is a doctrine not to be tolerated in this county that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to 'be a nuisance, can, by the mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property in the city at the uncontrolled will of the temporary local authorities.’ ” Section 374.
By recurring to the provisions of article 3, section 3, above quoted, it is seen that the “officers” and “agents” of the city are given the power, within the city and for the space of ten miles beyond the city limits, “to enter into and examine all dwellings” and “buildings,” to ascertain their condition for health, cleanliness, and safety; to “take down and remove buildings, walls or superstructures that are, or may become, dangerous, or require owners to remove or put them in a safe and secure condition, at their own expense;” that these officers or agents “may direct and regulate the building and maintenance of partition, parapet and fire walls, partitions, fences, ovens, smokestacks, stove flues, hot air flues, fireplaces, boilers, kettles, stovepipes, and the erection and cleaning of chimneys.”
Of these extraordinary provisions it is to be noted that the powers of the president and of the other “officers” and agents of the city are not to be defined or controlled by ordinance. It is noted, as to the president, the power is expressly given to him to act upon his own' opinion — “whenever in his opinion” — as to the existence of a nuisance.upon public or private property. In section 1 of article 3 it is provided: “That all powers conferred upon the city by the charter shall be exercised by ordinance, except as otherwise provided in this charter, and the president and municipal council shall have power by ordinance, not inconsistent with the constitution and laws of this State, and subject to the limitations expressed in this charter.” Then follow 39 subsections, setting forth what may be done by ordinance. Next follows section 2 of the same article, concerning the apportionment of revenue annually by ordinance. After these come the extraordinary provisions which we have
The extraordinary and baleful character of the provisions which we have declared void is emphasized, when we compare them with the powers given upon the same ■general subjects in sec. 1, subsec. 17, article 3, which are to be exercised by ordinance. In subsection 17 power is given to the municipal council by ordinance “to establish and enforce quarantine laws and regulations; to prevent the introduction and spread of contagious diseases in the city and within ten miles thereof; . . . to prohibit, remove or regulate the erection of soap factories, stockyards, slaughterhouses, pigpens, cow stables, dairies, coal oil and vitriol factories, and all other factories which the municipal council may by ordinance declare to be nuisances, within prescribed limits in the city and within two miles thereof.”
In this section it is perceived that the powers conferred within the radius of ten miles beyond the boundaries of the city are for quarantine purposes simply, as in chapter 11, p. 15, Acts of 1879, and that the powers here conferred within the two-mile limit beyond the corporate boundaries are most of them of the special character sanctioned by the authorities for the protection of municipalities against factories dangerous to the health of -a city. We do not think, however, that the legislature could constitutionally empower a city by ordinance to prohibit “pigpens, cow stables, and dairies” for two miles beyond the city limits. For the same reason we
We do not think there is any force in the objection that the act in question gives to the city the power to establish public schools within its borders. This is a mat-terter- that may be properly included within municipal powers. Ballentine v. Mayor and Aldermen of Pulaski, 15 Lea, 688; 1 Abbott, Munic. Corp., p. 702; 2 Abbott, Munic. Corp., p. 1219; 3 Abbott, Munic. Corp., p. 2378 et seq.
Article 5 is entitled “Revenue — Taxation.”
Under this article sections 11, 23, and 24, also 46 and 51, are attacked as unconstitutional.
Section 11 reads as follows:
“Sec. 11. Be it further enacted, that the assessor, shall return, on his assessment book of real property, in tabular form, each parcel of real estate subject to taxation, with the description and value thereof, and in separate column the value attached by the assessor to each*423 parcel or description, with the name of the owner, if known. When any property is not laid off in lots or blocks, the assessor shall describe same by any pertinent description, and for the purpose of snch description he may require the owner thereof to furnish snch description. It shall be the duty of all owners of property, not so laid off in lots or blocks, to furnish to the assessor a sufficient description thereof, and in case of the failure of any such owner to furnish such description at least fifteen days before the time fixed for the return of the assessment, the assessor may require the city engineer to make and return to him a survey of such property, and the expenses of such survey shall he returned by the assessor, together with his assessment of the property, and shall be added to the tax to be levied upon the property and collected as a part thereof .”
So much of the foregoing section as is underscored or italicized violates article 2, sections 28, 29, of the State constitution, which require equality and uniformity in taxation. Section 28 provides that “all property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that taxes shall be equal and uniform throughout the State.” Section 29 provides that municipal taxes shall be imposed “upon the principles established in regard to State taxation.” It is not sufficient merely that all per-in the State is this burden imposed upon taxpayers; sons within the city may be burdened with the additional expense referred to in the section quoted. Nowhere else
The next section complained of reads as follows:
“Sec. 23. Be it further enacted, that if any one against whom a personal tax is assessed, and which is due and unpaid, whether the same shall be delinquent or not, shall have removed out of the city, or shall be about to remove out of the city, or shall have removed or be about to remove his personal property out of the city, it shall be the duty of the city treasurer or tax receiver, at once to proceed to collect such personal tax by distress sale of any personal property of such person that shall be found in the city of Memphis, as provided in the preceding section of this article for the distress and sale of personal property for delinquent personal taxes.”
This section is in violation of article 11, section 8, of the State constitution.' That section provides: “The legislature shall have no power to suspend any general law for the benefit of any particular individual; nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to an individual or individuals rights, privileges, immunities or exemptions other than such as may be by the same law extended to any member of the
It is true that the legislature has power to grant special charters to municipal corporations, and may, in general, include within those charters such peculiar provisions, not in conflict with the constitution, as may be needed for .the convenience and well being of the particular community. But where these provisions are so general as to fall within a classification common to all the citizens of the State, there can be no justification for erecting a single city into a class by itself, with provisions more onerous than are imposed upon all other citizens occupying the same situation, or more advantageous. It was so held mauy years ago, in a case cited infra, where the legislature attempted to exonerate the city of Memphis from the burden of executing cost or appeal bonds. By the general laws of the State, applicable to all citizens, tax officers are permitted to dis-train. for delinquent taxes. Nowhere else in the State are they permitted to distrain for tax not delinquent, except in the city of Memphis under the section above quoted. The said section creates an unconstitutional discrimination in favor of the city of Memphis, and thus is in violation of the section of the constitution above referred to. It imposes upon the citizens of Memphis a burden nowhere else imposed, and is in violation of article 1, sections 8, of the constitution. There can be no good reason for singling out the city of Memphis for these discriminations.
“Section 24. Be it further enacted that if any tax, interest, or cost shall remain unpaid on the first day of September on any share or shares of stock of any corporation, the shares of which are taxable under this charter, or any ordinance of the city, it shall be the duty of the city treasurer, or tax receiver to sell such share or shares to the highest bidder,” etc.
By section 21, the first day of July is made the day of delinquency as to taxes on all other kinds of property. The constitutional objection suggested is that an unreasonable discrimination is made in favor of holders of shares of stock in corporations, by giving to these persons until the 1st day of September. We think this objection is well taken, and makes the section referred to (section 24) unconstitutional as in violation of article 11, section 8, of the constitution. Stratton Claimants v. Morris Claimants, 89 Tenn., 497, 15 S. W., 87, 12 L. R. A., 70.
The next section complained of is the following:
“Sec. 46. Be it further enacted that in any suit or proceeding involving, or in any manner calling in question, the title or right of the grantee in a tax deed, or those claiming under lien of, to, or in the real property conveyed, or purporting to be conveyed, by such tax deed, executed substantially as provided in the preceding section, the person claiming title adverse to the title conveyed or purporting to be conveyed, by such tax deed,*427 shall Tbe required ta prove, in order to defeat said tax deed, either that the taxes, interest and costs were paid before the sale; that the real property therein described was not subject to taxation for the year or years stated in the deed; that the real property therein described had been redeemed from the sale at the date of the deed, or the tender of the redemption money had been made to the city treasurer before the execution and delivery of the deed, in accordance with the provisions of this article, and that such redemption was had or attempted to be had for the use and benefit of the person having the right of redemption under this article; and if any person claiming title under a tax deed executed substantially as .provided for in the preceding section shall be defeated in any suit or proceeding by or against him for the recovery of the real property conveyed, or purporting to be conveyed, by such tax deed, the successful claimant shall be adjudged to pay such person claiming under such tax deed the full amount of all money paid by the purchaser at the tax sale for such real property, together with interest at the rate of twelve per cent, per annum; and also the amount of taxes; — State, county, municipal, general, or special — paid by the purchaser, his heirs, or assigns after the date of the certificate of purchase, with the same rate of interest per annum, together with the costs of tax deed and fees for recording the same; also the total costs of all improvements made thereon, and all costs in the case, which judgment shall be a lien upon the real property in controversy, and shall*428 bear interest at the same rate per annum, and may be enforced by execution or sale as in other cases of judgments and decrees of such court against the land in controversy.”
Under the foregoing section, if any citizen’s property has been unlawfully subjected to a tax sale, and he shall sue such unlawful holder of this property and defeat him in the litigation, he must nevertheless pay to his defeated adversary whatever price the latter may have paid at such unlawful sale; and not only this, but he must pay him twelve per cent, interest per annum; and not only this, but any State, county, municipal, general, or special taxes which such illegal purchaser may have paid and in addition twelve per cent, on these amounts; and not only this, but the costs of the unlawful tax deed and fees for recording it; and not only this, but the total cost of all improvements which the unlawful purchaser may have made upon the property of the lawful owner; and not only this, but all the costs of the case in which he has defeated the unlawful holder of his property. All these sums, with accumulated interest, are made a lien upon the lawful owner’s property, and the same is to be subjected to sale for the exoneration of these sums imposed.
The foregoing section is unconstitutional and void, in that it creates an unreasonable discrimination in favor of the city of Memphis as a means of collecting its taxes, and also in favor of purchasers at tax sales under the authority of said city, in violation of article 11, section 8, of the constitution of the State. It is also unconstitu
The next section complained of reads as follows:
“Sec. 51. Be it further enacted that each assessment, land tax book, or personal tax book, notice, advertisement, book of sale, certificate of purchase, deed, paper, and document of every nature and description, made or executed under or pursuant to this article, shall be liberally construed, to effect the purposes and objects of this article, and in determining the validity thereof. No error or irregularity in any assessment, land taw booh, personal tax booh, notice, advertisement, booh of sales, certificate of purchase, deed, paper, or document aforesaid, relating to the assessment, levy, or collection of the taxes of the city, shall in any manner affect or impair the validity of any sale or other proceeding for their collection. This charter shall be taken and held to be a full and sufficient notice of all acts and proceedings for the assessment, levying, and collecting of the taxes of the city of Memphis.”
The taxing power is necessary to the life of all governments, but there are some limits even upon a sovereign
The next section complained of is section 7 of article 8. That section reads as follows:
. “Sec. 7. Be it further enacted that the city, in taking appeals or prosecuting' a writ of error in any judicial proceeding, shall give bond as required by law, but it is hereby released from the obligation of law to furnish security therefor. Every such bond shall be executed by the president in the name of the city and under the corporate seal thereof, and shall be taken in all courts of this State as a full and complete compliance with the law in such cases.”
An act of the legislature embodying the substance of the foregoing section was held unconstitutional and void, as in violation of article 11, section 8, of the constitution as far back as the April term of this court in the year 1877. See City of Memphis v. Fisher, 9 Baxt.,
Objection is made to subsection 6 of section 1 of article 3. This subsection provides that the municipal council shall “have exclusive power to license ferries and to regulate the same, and the landing thereof within the limits of the city, and to fix and prescribé the charges and fees for ferries.”
For the defendants it is insisted that it is customary everywhere to grant such rights to municipal corporations. Such seems to be the rule in England and in some of our States. 1 Dillon on Munic. Corp. (3 Ed.), sections 114, 115, 116. In this State, however, there is a different rule. No authority is given in the constitution for the delegation of such rights to municipal corporations. The .power of delegation is to be found in article 11, section 9, which reads: “The legislature shall have the right to vest such powers in the courts of justice, with regard to private and local affairs, as may be expedient.” This same provision is found in the constitution of 1834, article 11, section 8. Prior to. the last-mentioned constitution the power had been delegated to the county court. Corporation of Memphis v. John Overton, 3 Yerg., 387. We do not find anything in that case, or in any prior case, setting forth the grounds of this grant. However, since the constitution of 1834, and of 1870, went into effect, the power to delegate has been ascribed to the section which we have quoted; or at least the power must be found to reside there. See Guinn v. Eaves, 117
Objection is made to subsection 37 of article 3, and to sections 14, 15, and 22 of article 8.
Subsection 37 of article 3 provides that the municipal council shall have power “to locate and establish as many voting precincts in each ward as may be necessary to accommodate the voters therein, and to guard and protect the same, provided that a sufficient number of precincts be established in each ward so that they shall conform to any rule or regulation fixed by the county court for holding State or county elections.
Subsection 14 of article 8 reads: “That all special elections, not otherwise provided for, shall be held under such regulations as may be prescribed - by ordinance.”
Section 15 reads: “That subject' to the constitution and laws of the State governing the city, provisions may be made by ordinance for the holding of any election for any lawful purpose, and for conducting the same and ascertaining and declaring the result thereof, and making a proper record to evidence the result.”
Section 22 reads: “That in all municipal elections held under this charter the voters thereat shall have all the qualifications necessary to entitle them to vote for
For the defendants it is insisted that the power delegated has reference solely to special franchise elections and not to general official elections. It is further insisted that the election law of 1897 (Acts 1897, p. 139, c. 16) construed in the case of Gotten v. Gowen, 113 Tenn., 175, 80 S. W., 1087, does not contemplate and make special provision for franchise elections such as are authorized by the act of March 27, 1907, under the head of franchises. It is further insisted that elections are an incidental matter and belong naturally to municipal life.
We think the learned counsel for the defendants incorrectly construe the provisions above quoted. Undoubtedly the purpose of these provisions was to place the whole matter of elections within the city of Memphis, both general and special, and of every nature, and for all purposes, in the municipal council. This is especially manifest from the language used in section 15 above quoted: “Provisions may be made by ordinance for the holding of any election for any lawful purpose, and for conducting the same and ascertaining and declaring the result thereof, and making a proper record to evidence the result.”
It is no doubt true, as insisted for the defendants, that the matter of elections is incidental to corporate life,
It is further provided in the act referred to (the act of 1897) : “That it shall be the duty of the officer holding the election to deliver the polls or returns of the election sealed as received to the said commissioners of registration, not later than 12 o’clock m. on the first Monday after the election. On the first Monday after the election it shall be the duty of the commissioners of registration to compare the said polls or returns at the court house, and to certify, in writing, signed by at least two of them, the result as shown by said polls or returns, and to deliver said certificate to each person elected at said election.”
It is further provided “that said commissioners of registration shall cause a true copy of all the polls or poll lists used at, or in, every regular November election to be made out, and when completed they shall file the same with the clerk of the county court to be preserved as records for the period of four years by him.”
In the last section of the act it is provided: “That the duties imposed and the powers conferred herein upon the commissioners of registration shall apply to all national, State, county and municipal elections, and also to all special or called elections.”
The city of Memphis falls within the provisions of the foregoing act, along with many other communities in the State, which fall within the classification made by
It is insisted that the various provisions which have been above declared unconstitutional along- with certain other provisions now to be mentioned, constitute distinct subjects not embraced within the title of the act we have under consideration (the act of March 27, 1907) ; hence the act is void, as in violation of article 2, section 17, of the constitution of the State. The other provisions referred to in connection with the foregoing provisions declared unconstitutional are sections 37, 41, and 44 of article 5, relating to revenue and taxation. These sections contain several provisions which cover State and county taxes.
The decisions in this State construing and applying the provision of the constitution just quoted are very numerous. They are as follows: State v. Hayes, 116 Tenn., 40, 93 S. W., 98; Memphis v. Hastings, 113 Tenn., 142, 86 S. W., 609; Arbuckle Bros. v. McCutchen, 111 Tenn., 514, 77 S. W., 772; Nichols & Shepherd Co. v. Loyd, 111 Tenn., 145, 76 S. W., 911; Saunders v. Savage, 108 Tenn., 340, 67 S. W., 471; Condon v. Maloney, 108 Tenn., 82, 65 S. W., 871; Carroll v. Alsup, 107 Tenn., 257, 64 S. W., 193; State v. McMinnville, 106 Tenn., 384, 61 S. W., 785; State, ex rel., v. Banks, 106 Tenn., 394, 61 S. W., 778; State v. Hoskins, 106 Tenn., 430, 61 S. W., 781; State, ex rel., v. Schlitz Brewing Co., 104 Tenn., 715, 59 S. W., 1033, 78 Am. St. Rep., 941; State v. Brown, 103 Tenn., 449, 53 S. W., 727; State v. Bradt, 103 Tenn., 584, 53 S. W., 942; Ryan v. Terminal Co., 102 Tenn., 111, 50 S. W., 744, 45 L. R. A., 303; Bank v. Divine Grocery Co., 97 Tenn., 603, 37 S. W., 390; Powers v. McKenzie, 90 Tenn., 167, 16 S. W., 559. The remaining cases upon the subject will be found stated, examined, and compared in Hardaway v. Lilly (Tenn. Chy. App., 1898), 48 S. W., 712.
It is insisted for defendants • that, notwithstanding the above mentioned unconstitutional provisions, ' the
We shall postpone the determination of the questions thus suggested until we state the next phase of the inquiry in respect of the violation of article 2, section 17, of the constitution. That portion of section 17 of article 2 of the constitution involved in this latter phase reads as follows: “All acts which repeal, revive or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.”
“An act to modify and change in certain respects the form of government of the city of Memphis by abolishing certain municipal officers, departments, and agencies, and creating others; to alter and change some of its powers and to create others; to amend its existing charter or charters, or acts of the general assembly, under which it is organized and exists as a municipality, so as to continue its existence, with a more efficient form of government, and with powers altered and enlarged, so as to secure and promote better government and administration, and to amend an act entitled ‘An act to establish taxing districts in the State and to provide the means of local government for the same,’ being chapter 11, Acts of 1879, and all acts amendatory thereof; and also to amend chapter 54 of the Acts of 1905, entitled CA bill to be entitled “An act to establish taxing districts in this State, and to provide the means of local government- for the same,”’ the same being chapter 11 of the Acts of 1879, and all acts amendatory thereof, constituting the charter of the city of Memphis; and to better and perfect the charter of said city of Memphis, created by the acts of assembly aforesaid.”
Before entering into the particular’s of the question, we shall state in outline the general contentions of the respective parties. For the complainants it is insisted that, while the caption purports an amendment, the body of the act shows a complete new scheme of legislation, covering the whole subject, and thereby displacing
There are some general observations that we deem pertinent at this point, in the nature of a statement of the principles which should control the investigation.
In the first place, while the legislative history of an act may be looked to as throwing light upon its meaning and purpose, we do not think that any controlling importance can be attached to the fact that the bill in question was first introduced as an independent act, and then withdrawn and introduced as an amendatory act, for the purpose of avoiding the Pendleton law, and escaping the prohibition of the sale of intoxicating liquors in the city of Memphis. The purpose, whether laudable or reprehensible from a moral, social, or economic standpoint, was at all events a lawful one, and cannot greatly affect the question whether the act under examination can be considered and treated from the constitutional standpoint as an amendatory one.
In the second place, we deem it quite true that if the caption of an act shows that it was intended by the legis
We do not think the opinion of the legislature as to whether an act is an amendatory act, or a repealing act, is at all conclusive. The question is a judicial one, and it is the duty of the court to consider it from that standpoint alone, without further deference to the opinion of the legislature than' is required by the Avell-known and universal rule that statutes must not be declared unconstitutional if it be possible by any reasonable construction to hold them valid; or, as applied to the case supposed, when the caption declares a purpose to amend an act referred to, the act must be sustained as an amendatory act, if this can be done by any reasonable construction. But suppose the “expressed intention,” or that expressed in terms, is in conflict with the completed result as shown by the provisions of the act, which shall control? When the actual provisions show a repeal of prior acts, can the legislature nullify the fact by saying in terms, “This is an -amendment, not a repeal?” Certainly not. The dominant intent must be held to be that which is shown by the fact: This is unmistakable. The other is illusory. Here we must dis
We do not think that Poe v. State, 85 Tenn., 495, 3 S. W., 658, is at all opposed to the views above expressed, since it appears (page 500 of 85 Tenn., page 659 of 3 S. W.) that the court simply rejected as surplusage so much of the title of the act under examination in that case as referred to the matter -of amendment, no particular statute being referred to, and held that the title of the act showed “an intent to legislate upon the entire subject of concealed weapons, and not a purpose tQ amend or repeal a particular provision only.” It was thus treated as an independent act, covering the whole subject, and repealing by implication prior laws in conflict with it. However, if the matter rejected from the title in Poe v. State, had not been rejected, the act there under examination must have been held unconstitutional, as shown by the later case of Shelton v. State, 96 Tenn., 521, 32 S. W., 967.
We may add that the following quotation, appearing in the brief of defendants’ counsel, taken from Thompson’s Commentaries on the Law of Corporations (volume 1, section 623), is good law, viz.: “The test by which to determine whether a particular subject can be embraced within the title, ‘An act to amend’ a former act, is to consider whether the subject could have been embraced within the original act under its title. ‘If, under the original title of the act incorporating the company, it would have been proper to confer upon the corporation the powers contained in the amendment, then there can be no doubt of the power to confer them upon it by way of amendment of such act, and under the title of ‘An act to amend’ the original act, reciting its title. Any additional powers may be given to the
We shall now state in outline the powers and form of organization devolved upon the city by the act in question. We cannot give these in detail, because of the
The powers given are:
“To have perpetual succession; to sue and be sued; to implead and be impleaded, defend and be defended, in any courts of law or equity in all actions whatsoever, except as hereafter provided in article —, section 28 of this act; and that it may make and use a corporate seal, and alter same at pleasure, may acquire and hold any gift, devise, purchase, or by condemnation proceedings, lands or other property for public use, either within the corporate boundaries of said city, or beyond the limits of said city, for waterworks to supply the city and its inhabitants with water; for gas works and other works and plants for supplying the city and its inhabitants with light, heat and power, or any of them; for public parks, cemeteries, penal and charitable institutions or any of them; for hospitals, markets, wharves, engine houses, fire stations, depots, rights of way for sewers, conduits, pipe lines, pole lines, viaducts, bridges, tunnels, subways or for the exercise of the powers herein granted, and that hereafter may be granted, or for any other public purpose.
“That it may take, hold, use and improve any property, real personal or mixed, either within or without the city limits that may be acquired by purchase, gift, devise, bequest or otherwise, and for any charitable use or educational, benevolent or public purpose whatsoever, and may do all that is necessary to carry out the pur*449 pose of such, gifts, bequests or devises, and may sell, lease or otherwise dispose of any property, real, personal or mixed of the city, and any contract rights of the city, subject to the restrictions imposed by this charter or the constitution of the State;
“That it'may lay out, open, extend, widen, improve, maintain or vacate streets and alleys, sidewalks and crossings and all public highways, and regulate the use of same;
“That it may construct and maintain sewers, drains and all works necessary for the disposition of sewage;
“That it may erect, construct and maintain public buildings and public works, and may lay out and maintain public parks and cemeteries;
“That it may establish and maintain public schools, public libraries, reading rooms and penal and charitable institutions; '
“That it may exercise the powers of eminent domain and taxation, and may by amendmeut of this charter extend its limits as defined herein so as to include new and additional territory;
“That it may protect the property of the city, and the lives and property of its inhabitants from floods and inundations and the danger thereof; and
“That it may exercise all municipal power necessary, or which may be deemed expedient for the complete and efficient management and control of the municipal property and administration of the municipal government and necessary to maintain the, public peace, protect*450 property and promote the public welfare and preserve the health of the inhabitants of the city, whether such powers be expressly enumerated herein or not; and may have and exercise within the city limits, and for two miles outside thereof, all governmental powers, and police powers, subject to the limitations prescribed by the constitution and laws of the State and of the United States.”
The foregoing provisions are contained in article 1 of the act.
Article 2 vests the legislative functions of the city in the municipal council, to consist of a president, vice president-, and three commissioners, and prescribes their qualifications and fixes their salary, prescribes what a quorum shall be, that the vote of a majority shall be necessary to pass ordinances, and indicates certain disqualifications to deal with the city in any other capacity, and contains provisions with respect to the meetings of the council.
Article 3 provides that all powers “conferred upon the city by the charter shall be exercised by ordinance, except as otherwise provided in this charter.” It further provides that the president and municipal council shall 'have power by ordinance to provide for the management and control of the finances and of all the property belonging to the city, and to appropriate money and provide for the payment of all debts and expenses of the city, to acquire property for the city by purchase or •gift, to sell property for the city, to make contracts, to levy taxes, to license occupations and impose taxes there
The act then proceeds to specify the powers to license, tax, and regulate hackmen, draymen, etc., and to license and regulate ferries; and to prescribe the time for which the licenses shall run and the fee to be changed therefor. It then gives power to remove and prevent all obstructions in the Mississippi and Wolf rivers within the city, and to improve and preserve the navigation thereof, and to erect, repair, and regulate wharves and docks, and to regulate the rates of wharfage within the limits of the city. It then.specifi.es the power to provide the city with water, to make, regulate, and establish public wells, pumps, cisterns, hydrants, and reservoirs in or under the streets, within the city ,or beyond the limits thereof, for the extinguishment of fires and the convenience of the inhabitants, and to prevent the unnecessary waste of water. It next specifies the power to provide for lighting the streets and erecting lamps theréon, and to regulate and fix the price and quality of gas, gasoline,
Then follow in due order full provisions with respect to streets, sewers, steam railroads, bridges, culverts;, public buildings, inspection of food, inspection of weights and measures, and numerous classes of merchandise; provisions concerning the public health and public morals, theaters, and places of public -amusement; the establishment of fire limits, and the prevention and removal of public nuisances; provisions for the preservation of public order, public safety, and public convenience, and the establishment of prisons and charitable institutions.
Power is also given “to establish the salaries and duties of all officers and the compensation and duties of all employees in all cases not provided for in this charter.” Then follows this general- clause: “The foregoing enumeration of particular powers granted to the municipal council in this charter shall not be construed to impair any general grant of powers herein, or in this charter contained, nor to limit any such general grant of powers of the same class or classes as those enumerated; and the municipal council shall have power to pass, publish and amend and repeal all such ordinances, rules and regulations not inconsistent with the provisions
Next the municipal council is given power to impose and collect fines, forfeitures, and penalties. It is required to make out a budget for each department as far as may be practicable. Provisions are also made concerning the style of ordinances and the method of their passage, together with the amending, reviving, and filing of ordinances. Power is also given to impose duties upon abutting property owners in respect of sidewalks and streets fronting or adjoining their property.
Article 4 prescribes the duties of the president and vice president, and gives the municipal council “power to appoint all city officers not designated by this charter to be elected by the people or otherwise elected or appointed, and to fill by appointment all vacancies occurring in such offices; also for just cause to suspend and remove the incumbents of any such office.”
This article provides for a city clerk, city assessor, judge of the corporation court, clerk of that court, comptroller of the city, treasurer, city counselor, assistant city counselor, stenographer for the city counselor, city clerk, and prescribes the duties of each.
Section 26 of this article provides “that all appointed officers whose positions are created by charter or ordi
Article 5 is entitled “Revenue — Taxation,” and contains fifty-five sections, embracing numerous and minute provisions upon these subjects.
Article 6 is entitled “Franchises,” and contains full provisions upon this subject.
Article 7 is entitled “Department of Parks and Boulevards,” and contains minute provisions upon these subjects.
Article 8 is entitled “Miscellaneous Provisions.” Herein are found directions concerning city improvement, fire patrol and salvage corps, official bonds, further provisions with regard to ordinances, and provisions with regard to city elections.
With regard to ordinances the following occurs in section 18: “That the municipal council shall have the power to pass all ordinances not inconsistent with this charter or the constitution and laws of the State, which it may deem necessary or expedient to more fully carry out any provision in this charter contained.”
The next section reads: “That this charter is declared to be a public act, and may be read in evidence in all courts of this State without proof.”
The following sections of article 8 are referred to by counsel for complainants as being without meaning, unless the purpose of the legislature was to create
“Section 1. Be it further enacted, that all ordinances, regulations and resolutions in force at the time this charter takes effect, and not inconsistent therewith, shall remain and continue in force until altered, modified or repealed by the municipal council.
“Sec. 2. Be it further enacted, that all measures and proceedings pending or under consideration in the legislative council at the time this charter takes effect, and not inconsistent with the provisions thereof, shall remain unaffected by this charter, and may be acted upon and disposed of. as if they had originated under this charter.
“Sec. 3. Be it further enacted, that all rights of action, fines, penalties, and forfeitures accrued to the city before this charter takes effect, shall remain unaffected thereby and may be prosecuted and recovered in every respect as fully as if this charter had not taken effect.”
“Sec. 5. Be it further enacted, that all recognizances, obligations, and all other instruments entered into or executed by or to the city before this charter takes effect, and all taxes, fines, forfeitures and penalties due or owing to the city, and all writs, prosecutions, actions and causes of action, except as herein otherwise provided, shall continue and remain unaffected by this charter.”
“Sec. 21. Be it further enacted, that the privilege taxes as now fixed by law shall remain and continue*456 until changed by ordinance, and the municipal council may from time to time, by ordinance, fix all taxes or? privileges.”
The following sections of article 8 are also specially referred to:
“Sec. 8. Be it further enacted, that all offices existing under the act entitled ‘An act to establish taxing districts in this State, and to provide the means of local government for the same,’ being chapter 11. of the Acts of 1879, and all the acts amendatory thereof, constituting the charter of the city of M'emphis, are hereby vacated and abolished.”
“Sec. 24. Be it further enacted, that all offices created by chapter 54 of the Acts of Assembly of 1905, be, and they are hereby, abolished and vacated, and the present occupants or incumbents thereof shall cease to exercise the powers, duties and functions thereof, or exercise any authority or perform any duties whatsoever as officers of said municipal corporation; that the municipal council shall, as soon as practicable, organize all new departments created by this act or by the municipal council under the authority of the charter of the city of Memphis, and reorganize all other departments of the city government, and to that end all offices in each and every department heretofore created and existing aré hereby made vacant, and the said municipal council .shall make appointments to fill said vacancies, and shall make appointments to fill the departments of said government.”
It is insisted for complainants that the foregoing
It is insisted that there is thus made to appear a very radical difference, not only between the two forms of government, but also in the nature, extent, and distribution of the powers of municipal government; that they cannot be united into one consistent whole; that there is an irreconcilable repugnancy; that the new act contains provisions which are absolutely destructive of the old form of government.
For the defendants it is insisted that the language of the new act shows that it is an amendatory and not an original act; that the form of government is not substantially different from that which existed under the old acts; that under both acts, the old and the new, the government was and is one by commissioners; that originally the form of government was one-chambered, and was subsequently made two-chambered or bi-cameral
It is true, as insisted by defendants’ counsel, that under the original act tbe legislative body was single, although it was composed of tbe members who made up the board of fire and police commissioners and tbe board of public works, and that tbe change from one to two chambers was made by chapter 54, p. 99, of the Acts of 1905. Tbe other statements, however, made by com
We do not see, however, the force of the contention, offered by defendants’ counsel, that the several departments referred to by them as existing can be said really to exist, otherwise than as abstractions, if all the offices formerly existing under the act of 1879 and its amendments are abolished. .There may be a department of government without an officer filling it; but there must be an office, or function attached to it, to be filled by one or more persons on whom its duties and responsibilities may be devolved. The office or function is a concrete expression of the potential activities of the department. If there be such an office without an incumbent, this is a case of vacancy to be filled by appointment or election; but, if there is no office at all, the supposed department is a mere inert ideality, simply a form -of words, a thing without substance.
The theory suggested in the chancellor’s opinion filed as a part of defendant’s brief, that section 24 of article 8 merely abolished the officers, leaving the offices standing, is wholly inadmissible. An office is a species of property, and the legislature cannot constitutionally legislate an officer out of that property while leaving the office with its duties unimpaired. This would be taking the property of the citizen without due process
Looking back over the provisions of- the act of 1907, it seems difficult to reach any other conclusion than that it was intended as a complete scheme of legislation, covering the whole ground; that the body of it shows all through that it was intended as a new charter; that for this reason it is spoken of therein more than fifty times as a charter; and for the same reason that in sections 1, 2, 3, 5, and 21 of article 8 special provisions were made for the preservation of ordinances, proceedings, and rights that would perish with a new charter, if not preserved by special provisions.
The inferences to be thus drawn are opposed by the language of the caption, by the preamble, and by some amendatory words appearing in section 1 of article 1.
A similar question of construction was presented in the case of Murphy v. Utter, 186 U. S., 104, 22 Sup. Ct., 776, 46 L. Ed., 1070. In that case it appeared that on June 25, 1890, congress passed an act providing that a certain funding act of the territory of Arizona “be, and is hereby, amended, so as to read as follows; and that as amended, the same is hereby approved and confirmed, subject to future territorial legislation.” Considering the matter thus presented, the court said:
“The first question to be considered is as to the relation of these two acts. Is the act of congress to be considered as an amendment or a repeal of the territorial act? It is true the preamble speaks of the territorial act as being amended, and, as amended, approved and confirmed. But the language is not that of an amending act, but that of a repealed and substituted act. No attention is called to the amendments, which are not even introduced in brackets, and a careful reading and comparison of the two acts are required to discover where and how the territorial act is amended. It stands as an original piece of legislation, although its different sections contain the numbers taken from the revised statutes of Arizona, as well as from the*464 original act of 1887. Both acts are complete in themselves and each is, upon its face, independent of the other. It is impossible to say that, if the territorial act were repealed, the act of congress passed three years later would also fail in consequence thereof, because the latter is not only the later, hut the paramount, act. They must either stand together as two independent pieces of legislation, or the general, and. perhaps the sounder, rule stated in United States v. Tynen, 11 Wall. (U. S.), 88, 20 L. Ed., 153, be applied, that where there are two. acts on the same subject, and the latter embraces all the provisions of the first, and also a new provision, and imposes different or additional penalties, the latter act operates, without any repealing clause, as a repeal of the first. In that case the defendant was indicted under an act passed in 1813 for uttering and counterfeiting a certificate of citizenship', purporting to have been issued by a California court. Upon a demurrer being filed to the indictment the judges differed in opinion, and the case was sent to this court, upon a certificate of division. While pending here, in 1870, congress passed another act embracing the whole subject of fraud against the naturalization laws, includ-' ing all the acts mentioned in the law of 1813, and many others. It was held that the act of 1870 operated as a repeal of the act of 1813, and that all criminal proceedings taken under the former act failed, and that, even where two acts are not, in express terms, repugnant, yet if the latter covers the whole subject of the*465 first, and embraces new provisions plainly showing that it was intended to he a substitute for the first act, it will operate as a repeal of that act.”
In the present case we are of the opinion that the body of the act purports a new charter for the city of Memphis, covers the whole subject, and therefore really purports a repeal of the prior charter; that the caption of the act and the body of it are in conflict; that the body of the act does not fall within the caption; that the act is therefore in violation of article 2, section 17, of the constitution, and is void.
The same conclusion is reached when we consider the case from the standpoint of the several provisions of the act found to be unconstitutional. The question is here presented in a double aspect. The first inquiry is whether the residue of an act can be held good after one or more sections or provisions have been elided as unconstitutional; and, secondly, whether such elided provisions present subjects not contained within the title, and hence rendering the act void as being in violation of article 2 of section 17 of the constitution.
In 1 Lewis’ Sutherland on Statutory Construction, p. 588, it is said: “In determining whether part of an act can stand where another part has been held unconstitutional, a different rule as to presumptions is recognized from that which obtains where the whole act is to be considered. The general rule that legislative acts are primarily presumed to be constitutional, and that all
The portions of the act of March 27,1907, which have been rejected as in themselves unconstitutional, are not so merely incidental and subordinate that they can be stricken out without in any sense impairing the efficiency of the act (State, ex rel., v. Trewhitt, supra), and they are so numerous that we cannot say that the legislature would have passed the act with these left out. The act must therefore, likewise, fall upon this ground, without regard to the question whether any of the excluded provisions referred to • present subjects not embraced in the title. It is clear, however, that one of the subjects embraced within an excluded section includes matter not falling within the title; that is, one including State and county revenue, which is a subject that could not properly be embraced under a title purporting to legislate for a city. Mayor and Aldermen of Knoxville v. Lewis, 12 Lea, 180. The section upon
Before closing the opinion we wish to recur to a subject briefly touched upon on a preceding page; that is, upon the supposed power of the legislature to remove officers of a municipality without abolishing their offices.
In the case of Memphis v. Woodward, 12 Heisk., 499, 501, 27 Am. Rep., 750, the case of Wammack v. Hollaway, 2 Ala., 33, was cited approvingly, wherein it was said: “An office is as much a species of property as anything which is capable of being held or owned, and to deprive one of it, or unjustly withhold it, is an injury which the law can redress in a manner as ample as it can any other wrong.” In the same case the chief justice said: “The right to exercise a public office is a species, of property, equally with any other thing capable of possession, and the law affords adequate redress when the enjoyment of it is wrongfully prevented. 3 Kent, 454; Wammack v. Hollaway, 2 Ala. (N. S.), 31. The same doctrine is recognized in Dodd v. Weaver, 2 Sneed, 670. But the right to the office does not entitle the officer to the compensation as under a contract. He takes it subject to the authority of the creating power to modify the compensation or to discontinue the office. Haynes v. State, 3 Humph., 480, 39 Am. Dec., 189; Hoke v. Henderson, 15 N. C., 1, 25 Am. Dec., 677. With this quali-
In Dodd v. Weaver, 2 Sneed, 670, the court said: “An office is an incorporeal right, and consists in the right to execute a public trust, and to take the emoluments belonging to it.” In Moore v. Sharp, 98 Tenn., 68, 38 S. W., 411, it was said: “As to the nature of the subject in contest, the office is an incorporeal right, and it consists in the right to execute a public trust and to take the emoluments belonging to it. 3 Kent’s Commentaries, 362. Now, if the -county court erroneously decided against the person entitled to the office, it was an injury to a private right for which there ought to be a remedy.” In Nelson v. Sneed, 112 Tenn., 48, 83 S. W., 788, it is said: “The right to hold an office, and receive and enjoy its emoluments, and exercise its functions, is an incorporeal right.” In Maloney v. Collier, 112 Tenn., 100, 83 S. W., 672, it is said: “An office is an incorporeal right, and consists in the right to execute a public trust and to take the emoluments belonging to it, and an injury to this right is an injury to a private right for which there ought to be a remedy.”
In the case of Hoke v. Henderson, 15 N. C., 1, 25 Am. Dec., 677, cited in the case of Memphis v. Woodward, supra, after admitting that the legislature might abolish offices or reduce emoluments, the court continued:
“Yet it is quite a different proposition that, although the office be continued, the officer may be discharged*469 at pleasure, and Ms office given to another. The office may also he abolished, because the legislature esteem it unnecessary. The common weal is promoted by that law; at least, it is the apparent object, and must be deemed to be the real one. But, while the office remains, it is not possible that the public interest can be concerned in the question who performs the services incident to it. The sole concern of the community is that they should be performed, and well performed, by somebody. That they should be done by one particular person more than by another is not, therefore, a matter of expediency in any sense; and hence it cannot be the subject of legislation that one man, who has the faith of the public pledged to him that he should have the employment for a certain-term, and who has, upon that faith, entered upon the employment and faithfully executed it, should be deprived of it, and supplanted by another man, who is to do and can do the community no other services than those already in the course of performance by the former.”
The conclusion that an office could not be taken from one man and given to another by legislation was based upon the ground that this would be a judicial determination. The court said:
“It does not follow, therefore, that because the British Parliament, whose supremacy is acknowledged, decides questions of private rights and puts that decision, as it does its other determinations, in the form' of a statute, that whatever it does is legislative in its nature. It*470 can adjudicate, and often does substantially adjudicate, when it professes to enact new laws. That faculty is expressly denied to our legislature, as much,, as legislation is denied to our judiciary. Whenever an act of the assembly, therefore, is a decision of titles between individuals or classes of individuals, although it may purport to be the introduction of a new rule of title, it is essentially a judgment against the old claim of right, which is not a legislative, but a judicial, function. It may not be easy to distinguish these powers, and to define each, so that an act shall be seen at once to be referable to the one or the other. But I think that where a right of property is acknowledged to have been in one person at one time, and is held to cease in him and to exist in another, whatever may be the origin of the new right in the latter, the destruction of the old one in the former is by sentence. If the act of 1832 had been confined in its terms to the clerkship of Lincoln, its judicial character would be obvious. If it had said that Mr. Henderson had forfeited his office, or had conveyed it to Mr. Hoke, or that after forfeiture Mr. Hoke had been duly appointed, or had been elected by the citizens and was appointed by the legislature, it would be plainly, as respects Mr. Henderson’s title, an adjudication against it, although the subsequent investment of the title in Mr. Hoke would be legislative. Is the act the less of the former character because it does not recite an abuse by Henderson, or other cause of forfeiture? Is not such forfeiture as*471 sumed in it? For it is impossible in the nature of things that Mr. Hoke can he rightfully put in, unless the other he rightfully put out.”
.In the case of State Prison, etc., v. Day, 124 N. C., 362, 32 S. E., 748, 46 L. R. A., 295, Throop on Public Officers, section 20, is quoted with approval as follows:
“Nor can the legislature take from the officer the substance of the office, and transfer it to another, to be appointed in a different manner, and to hold by a different tenure, although the name of the office is changed, or the office divided, and the duties assigned to two or more officers under different names.”
In that case the question which the court had under consideration arose out of the fact that the legislature had attempted to abolish the office of superintendent of prisons and to create a board of directors of three to perform the same duties. In addressing itself to the question thus presented, the court said:
“No function or duty that was formerly performed or imposed upon the superintendent is abolished. The functions and duties of that office are still necessary to the public welfare. They have not been abolished. They have simply been transferred to others. That cannot he done according to the law of the land. That three of the directors have been made the governing head of the institution, under the name of ‘Executive Board,’ and that to them the duties and functions of the office of superintendent have been transferred, does not change the application of the law. It is the same as*472 if the duties of the office had been transferred to one person. It is not a valid argument to contend that the executive board can conduct a State’s prison in a better and more satisfactory manner than can one man. It may be true in point of fart, and that plan can be tried at the end of the defendant’s term of office.”
In a concurring opinion delivered in the same case by Furches, J., it is said:
“That case [Hoke v. Henderson], and every case since that case, discussing the right of an incumbent to hold his office, recognizes the right of the legislature to abolish a legislative office, and that, when the office is abolished, the right of the incumbent to hold it is gone, because there is no office to hold. But all the reported cases from Hoke v. Henderson, down to and including State v. Bellamy, 120 N. C., 212, 27 S. E., 113, hold that, to have the effect of ousting the incumbent before his term expires, the office must be abolished; that it is not sufficient to declare that it is abolished when it is not abolished; that the office is intangible, and consists in the duties of the office, and while those duties are continued the office is continued. The discussion then comes down to this: Are the duties of the office which defendant held abolished, or are they transferred to others?”
In the case of Wood v. Bellamy, 27 S. E., 113, 120 N. C., 212, it appeared that the legislature of North Carolina in express terms essayed to abolish the offices of superintendent and directors of the hospital, purport
“But the plaintiffs further contend that because the act declares that the offices of superintendents of the old corporations are abolished, and the offices of principal and resident physician substituted therefor (the latter elected for four years, instead of six, as was the superintendent) , and because the government of the new corporation shall be under the management of nine trustees, called the ‘Board of Trustees,’ elected for a term of four years, instead of in classes of three for six years, the terms expiring at different times, as under the Code, and called the ‘Board of Directors,’ the officers under the old corporation are abolished, and the new ones take their places. This contention cannot be sustained. The legislature of 1870-71, upon the return to power of one of the political parties, undertook to remove the officers of a North Carolina institution for the deaf, dumb, and blind, who were of another political faith, and in the act for that purpose (chapter 35, p. 38) resorted to this same device of changing the name of*474 the offices to carry out their purpose. That act (1870-71) called the new hoard which it created the ‘Board of Trustees/ in substitution of the old board,. which was called the ‘Board .of Directors/ and used; the very word used in the act of 1897, ‘abolished.’ It declared that the board of directors should be abolished/ and the powers, rights, and duties heretofore prescribed by law to said board shall hereafter be granted to and imposed upon the board of trustees. It seems that the new board (called the ‘Board of Trustees’) took possession of the property and affairs of the corporation; but upon an action being commenced by the old board of directors against the board of trustees, and brought to this court on appeal, it was held that the legislative appointment was invalid, and that the title to the offices was in the old board of directors. It was also held that the legislature had the right to change the name of the board by which the institution was governed from the board of directors to that of the board of trustees, but in doing so it left the board the office to be filled by officers. Nichols v. McKee, 68 N. C., 429. The act did not, in fact, abolish the offices by changing the name of the board, although the act 'declared that the board of directors was abolished. The offices were left as before, and the abolition of the board of directors was one of words only.” Wood v. Bellamy, 27 S. E., 115, 116, 120 N. C., 212.
In disposing of a clause in the act by which the legislature undertook to interpret what they were doing,
“Those places have been held to be offices, as we have declared in this opinion, and the legislature, by simply declaring that they shall not be offices, does not change the nature of the thing. In the case of Clark v. Stanley, 66 N. C., 63, 8 Am. Rep., 488, Chief Justice Pearson, delivering the opinion of the court, defining what a public office is, said: ‘A public office is an agency fon the State, and the person whose duty it is to perform this agency is a public officer. The essence of it is the duty of performing an agency; that is, of doing some act or acts, or a series of acts, for the State.’ It is as idle, under the decisions of this court, to say that such a position as these defendants hold is not an office, as it would be to say that a horse is not a horse,.because one may choose to call him some other animal.” Wood v. Bellamy, 120 N. C., 212, 27 S. E., 116.
Concluding, the court said:
“The effect of the act, then, is that it has only a prospective operation as to the change of the name of the institution, and the name of the offices connected with it, and that the defendants (the incumbents) are entitled to hold onto their offices, the defendant Kirby for the term for which he was elected, and the other defendants for the terms for which they were appointed, and until their successors are duly elected or appointed and qualified.” Wood v. Bellamy, 27 S. E., 117, 120 N. C., 212.
“The power which created it (the office) had the right to abolish it at any time, and where the office is abolished the presumption prevails that the services which the discharged officer was wont to perform are no longer required by the public, and no implication injurious to the incumbent can arise because of this dismissal, and no explanation or defense can avail hinq and therefore no charges in such event need be preferred. This court so held in Heath v. Salt Lake City, 16 Utah, 374, 52 Pac., 602.
• “In the case at bar, however, it will be noticed that, within a few days of the passage of the ordinance which appellants claim abolished the office, another one was passed providing for the same office, that both ordinances were published on the same day, and that on the*477 day previous to the publication, another person was appointed to fill the office. This shows that before the ordinance which is claimed to have abolished the office could become operative, the same office was again created. .. . It is too clear for argument that the real purpose and design was, not to abolish the office, but to get rid of one incumbent to make room for another. The method pursued to effect the removal is not such as commends itself to a court of justice. An officer whose tenure is during good behavior, or who can only be removed for cause, cannot thus be legislated out of office. People v. McAllister, 10 Utah, 357, 37 Pac., 578; Pratt v. Board, 15 Utah, 1, 49, Pac., 747; Heath v. Salt Lake City, 16 Utah, 374, 52 Pac., 602; Pratt v. Swann, 16 Utah, 483, 52 Pac., 1092.”
The same rule is laid down in Kentucky. In Adams v. Roberts it is said:
“Though the legislature is given the power to abolish the office of commonwealth’s attorney in this State, until it does so it cannot abolish the tenure of any rightful incumbent of the office. He might be impeached, but not legislated out of office, Cooley’s Const. Lim. (6th Ed.), 482; Black, Const. Prohib., p. 119, sec. 99.” 83 S. W., 1035, 1037, 119 Ky., 364.
To the same effect is State v. Wilts, 11 La. Ann., 439, wherein the court said:
“It is inadmissible to say that a person holding an existing office under a fixed tenure can be removed, or that his regular term of office can be abridged, by an*478 ordinary act of tlie legislature other than an act abolishing the office.”
The same rule obtains in this State. In State v. Leonard, 86 Tenn., 485, 7 S. W., 453, the court had under consideration chapter 84, p. 163, Acts of 1887, which contained the following provisions:
“Sec. 2. Be it further enacted that from and after the first Monday in April, 1887, the office of chairman of Marshall county court is, and shall he, hereby restored and re-established in said county, with all the rights, privileges, jurisdictions, duties and powers, possessed by, and vested in, and belonging to the office of chairman and judges of the county court of the various counties of this State, and that from and after the said first" Monday in April, 1887,. the office of the county judge of Marshall county be, and is, and shall be, hereby abolished. . . .
“Sec. 4. Be it further enacted that the chairman of the county court of Marshall county shall have, possess, exercise and discharge all the rights, privileges, and duties and shall have, possess and exercise and discharge all jurisdiction^ powers, duties and privileges now possessed, exercised and discharged, and vested in, imposed and conferred by the act of 1875, chapter 70, and all existing laws, upon the chairman of the county courts of the various counties in the State; and said chairman is further invested with all the power and with the same jurisdiction and authority wherewith county judges are now invested, and shall comply with all the*479 requirements of, and perform all the duties imposed by law, creating and regulating the powers and duties of chairmen of the county courts and county judges of this State.”
The court held" that the foregoing act simply changed the name of the office, leaving its duties intact, and devolved those duties upon a person other than the incumbent at the time, and did not in fact abolish the office, hut was an abortive attempt to legislate the incumbent out of office. It was held that this could not be done.
The same doctrine is recognized in Halsey v. Gaines, 2 Lea, 316, 324, 325; Judges’ Cases, 102 Tenn., 510, 538-540, 53 S. W., 134; State v. Lindsay, 103 Tenn., 625, 53 S. W., 950; the Redistricting Cases, 111 Tenn., 234, 80 S. W., 750; State, ex rel., v. Hamby, 114 Tenn., 361, 84 S. W., 622.
In the case before the court it appears that the act purports to abolish all offices existing under prior acts, and in the same act the same offices are re-enacted under different names. Under the former city charter there was a city tax assessor whose duty it was to assess property in the city for taxation; under the present act there is a city assessor whose duty is the same. Under the former acts there were a city attorney and assistant attorney, whose duty it was to attend to the city’s legal business; under the present act there is a city counselor and assistant counselor, whose duties are the same. Under the former acts there was a judge and a clerk of the city court; under the present act there is a judge
Men cannot be legislated out of office in this way. • Even if the statute in question, or bill purporting to be a statute, could be treated as a valid amendatory act of prior legislation, it could not have the effect to remove the officers above named, and create a vacancy to be filled by appointment, since the same act which purports to abolish the offices restores them under another name. However, the act is wholly void.
So there is no point of view from which the demurrer can be sustained. It results that the decree of the chancellor must be reversed, and the cause remanded.
