140 Tenn. 97 | Tenn. | 1918
delivered the opinion of the Court.
This suit was brought by complainant to recover from the city of Memphis a balance alleged to be due as salary as a member of the fire department. The suit is intended as a test case; and, while the amount claimed by complainant is small, the total amount due, or alleged to be due, those within complainant’s class is $7,500.
The defenses are: (1) That the act referred to is unconstitutional and void; and (2)- that complainant has waived his right to receive the increased pay from April 6th to September 1st, because he accepted pay at the old rate without protest.
It is said for the city that chapter 488 of the Private Acts of 1917, in so far as it undertakes to com
It may be conceded at the outset that a municipality, in so far as its rights are controlled by the Constitution of this State, has a dual existence. It has the rights of an individual, and as such, in the exercise of those rights, may enjoy the privileges and immunities, and must bear equal burdens with other citizens of the State. In such capacity it is under the protection of article 11, section 8, of the State
However, in its capacity as an arm or branch of the State government, and in the exercise of its governmental functions, it is to be treated as' a political subdivision of the State, and its governing, or political rights, are all to be regulated by those provisions of the Constitution whicli refer to it in that capacity, and by the legislature in its unrestricted sovereign capacity. Redistricting Cases, 111 Tenn., 234, 80 S. W., 750. In this view it was held at an early day that the legislature had complete control of municipal corporations, and may abolish them at any time in its discretion. Luehrman v. Taxing District, 2 Lea, 425. The power to abolish a municipal charter necessarily includes the power to amend it if the amendment is otherwise valid. In Luehrman v. Taxing District, supra, there is to be found a wide discussion of the relationship which municipalities bear to the State government. It is shown in that case that political power- conferred by the legislature upon a municipality cannot become a vested right as against its creator, and that municipal grants of franchise are always subject to the control of the legislative power for the purposes of amendment, modification,
“There cannot he a doubt, therefore, that Act 1879, chapter 10, to repeal the charters of certain municipal corporations is constitutional.”
This case is a fair illustration of the dual nature of municipal corporations. State v. Wilson, 12 Lea, 246.
The act of adopting, installing, equipping, and operating a fire department is a governmental function, and not a municipal one. Foster v. Water Co., 3 Lea, 42; Irvine v. Chattanooga, 101 Tenn., 291, 47 S. W., 419; Chattanooga v. Reid, 103 Tenn., 616, 53 S. W., 937; Nashville v. Mason, 137 Tenn., 170, 192 S. W., 915. The operation of a water plant being a governmental function upon all of the authorities, we think it equally clear that the decision to employ persons to operate it, as well as the fixing of their salaries, is also a governmental duty. It may be true that the city’s liability for wages to the employees of such a department is municipal, and the act of selecting the proper employees and fixing their compensation is the act of an individual, but there is no vested right in the city to fix the rate of pay which the employees of the fire department must receive. It cannot ignore the mandate of the legislature and assume that it has acquired a vested right in the
The learned city attorney treats the case as though it were one of first impression in this State. We consider that the cases cited in this opinion foreclose all of the questions that are made against the validity ■of the act of the legislature. However, it is interesting to note that some of the very cases cited on the brief for the city are discussed in the Luehrman Case. We do not deem it profitable to follow these cases, or the text-writers, into a discussion of the principles involved. It is sufficient for us to say that, so far as our cases are concerned, there has never been a doubt in this State of the power of the legislature to do all acts not forbidden by the State Constitution, or the Constitution of the United States, expressly
Has complainant waived his right to receive pay from the defendant from the passage of the act until the city authorities put the increase into effect? Complainant appeared before the city commissioners on April 17th on behalf of himself and other members of the fire department affected by- this act, and urged the commissioners to put the increase into effect. They stated that they would take the matter under serious consideration. The commissioners kept the matter under advisement, or at least took no further action until September 11, 1917, when complainant and others again pressed the matter on the commissioners. The complainant and the others continued to receive their pay at the old rate until the new rate was put into effect by the commissioners. No representations were made that the amount received should prejudice the right to claim the increased rate. It was known by complainant that the commissioners were objecting to the increased rate and were making some question upon the constitutionality of the legislation. However, there is nothing to show that the city, or the commissioners, were prejudiced in any