Saunders v. Savage

108 Tenn. 340 | Tenn. | 1902

Beard, J.

This is an action of libel brought by the plaintiff against the defendant, in which it is alleged that the defendant, in an answer and cross-bill filed in a cause instituted against him in the Chancery Court of White County by the plaintiff, had, without probable cause, maliciously, wantonly, and falsely uttered certain grossly defamatory words of and concerning her, to her damage $50,000.00.

The present action was begun in the Circuit Court of Davidson County, within whose jurisdiction the defendant was when the summons was served upon him.

To the declaration in the case the defendant filed a demurrer, but before action was taken on it, he presented a petition to the Court, in which he averred that he was a citizen of Warren County, Tennessee, and as such was entitled to have the cause transferred to the Circuit Court of that county for trial, under and by virtue of the terms of Ch. 126 of the Acts of 18^1, carried into Shannon’s Code from §§ 4559 to 4566, inclusive, and praying that an order be entered transferring it to that Court for trial. Over the objection of the plaintiff below, it was so ordered. The record was thereupon transmitted to the Circuit Court of Warren County, and the case there docketed. Subsequently the demurrer was argued, and the trial Judge, sustaining its fourth ground, dismissed the suit. The plaintiff has brought up the cause by an appeal in the nature of a writ of error, and assigns as reasons for reversal, the action of the Circuit Court of Davidson County in ordering the removal of the cause, and that of the trial Judge in Warren County in sustaining the demurrer.

The Act of 1871, under which the removal was effected, is assailed as unconstitutional on a number of grounds. Only one of the grounds will be considered by us, as its determination will be decisive of the contention of plaintiff.'

The Act is entitled, “An Act authorizing parties defendant in certain actions to sever, and to have the cause as to themselves transferred to the county of their residence.”

The first section of the Act provides “that in all suits for damages done the character of any person . . . each defendant therein, if there be more than one .. . . shall have the right ... to sever and have the suit' as to himself separately tried. The provision of the second section is as follows: “That in all causes now uending, or that may be hereafter instituted, in any of the Courts of this State, wherein any one or more of the defendants thereto shall avail themselves of the right to sever, . . . then . . any defendant so severing, who may have been at the commencement of the suit a resident of any other county of the State than the one wherein said suit is pending shall be entitled to have the cause as to himself removed to the county of his residence.” The remainder of the section, and Sec. 3, provide the mode by which this removal is accomplished; while Sec. 4 grants an appeal to this Court from the action of the Court failing or refusing to make the order for the transfer, in a case covered by Sec. 2 of the Act.

It will be observed that none of tbe Sections already referred to apply to tbe case of tbe defendant below, as be was tbe sole defendant, and there could be no order of severance, which under Sec. 2 precedes tbe application for a removal to tbe county of tbe petitioner’s residence.

But the right of removal is rested upon Sec. 5, which is as follows: “Be it further enacted, That the benefits of this Act shall apply to and have full force and effect in all suits for damages done the character of any individual, where there is only one defendant, so far as said Act applies to the removal of causes to the county of the defendant’s residence, and in all such causes now pending or that may hereafter be brought against any person in any county not of bis own residence, such person or defendant shall be entitled, in the same manner and with all the rights and privileges specified and granted herein to defendants where a severance occurs, to have said cause removed to the county of bis residence, and there tried as if originally instituted in such county.”

This section unquestionably justified the action of the Circuit Court of Davidson County in ordering the removal in this cause if valid, and the question is, was the section constitutionally enacted ?

We think not. Leaving out of view other objections, we are satisfied that the Act cannot be sustained, inasmuch as the section under which this removal was made is outside the title, and is not in any sense germane to the subject suggested by the title. This “authorizes parties defendant in certain actions to sever and to have the cause as to themselves transferred to the county of their residence.” By its terms it embraces only actions where two or more are defendants, for unless there be more than one defendant, there is no room for severance. And so the sections one, two, three, and four contemplate an application of this statutory rule, only where the action is against two or more, and they fall directly within the limits of the title. But it is otherwise as to Sec. 5. This seems to have been added as an afterthought. It would appear clear that it was not a part of the original plan, but was added after this had been perfected. That contemplated and provided a remedy for a defendant who, associated with another defendant or other defendants, was sued for defamation of character, while Sec. 5 gives the benefits of the Act to a defendant who stands alone in such an action.

The title is restrictive, and by no rule of construction can be made to embrace an action for defamation of character brought against a single defendant. No reason can be suggested for a distinction between the two cases. If it was proper to provide the remedy of removal in the one, it was equally so in the other case. But this could only be done within the constitutional provision; which is as follows:

“No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.” Art. 11, Sec. 1Y, State Constitution.

Illustrations of statutes held to be void, because of a violation of this clause, or section, may be found in State v. Bradt, 103 Tenn., 584, and Hyman v. State, 87 Tenn., 109.

Upon an examination it will be found that the sections of the Acts, the subject of controversy in these cases, were not more foreign to their respective titles than is the section in the Act which is presented. for consideration in this case.

It is settled, -beyond debate, that the constitutional provision quoted above “is mandatory as to the singleness of the subject of the bill and as to the expression of that subject in the title, and if a given bill embraces two subjects, or but one subject, and it is not expressed in the title, the attempted legislation is invalid in toto.” State ex rel. v. Schlitz Brewing Co., 104 Tenn., 726. Upon the authority of the cases, many of which are cited in the opinion, from which this quotation is made, construing this provision of the Constitution, we 'are constrained to hold the act in question void.

This being so, the action of the Circuit Court of Warren County, on the demurrer, was coram non judice. Its judgment is, therefore, reversed, and the case will be remanded to that Court, with the direction that the record be transmitted to the Circuit Court of Davidson County, where the demurrer will be acted upon, and such other steps be taken as may be necessary or proper in the cause.