Southern v. Beeler, Atty.-Gen.

Atty. Gen. et al. v. Beeler, Southern 1945.) (Knoxville, September Term, Opinion filed June 1946. to Rehear June 1946.

On Petition all H. & Anderson, Southern Joeh Southern complainants. Knoxville, for

James W. K. Johnson and Johnson all of Johnson, & for defendants. Knoxville, opinion Neil delivered Court.

Mr. Justice original injunction complainant bill in filed his taxpayer chancery of Knox a citizen and court, as Attorney against Boy County, General of Beeler, PI. County, Jr., Tennessee, Elmore, Knox James W. county,

Judge clerk, Dance, of said Jack Brickey, Superin- L. trustee, Beeder, Jr., PI. Lum against the mem- Public and also Instruction, tendent of naming County, of Knox the Board of Education bers complainant and all others in for himself them. The sued property and own taxable who live like circumstances corporate City Knoxville. limits within the party defend- attorney general made a of the state constitutionality challenges the bill ant because validity challenges bill also certain statutes. The appropriations certain by made court, and injunction restraining seeks an payment thereof.

All defendants in due course filed and the answers case upon was decided the chancellor the technical record. It is true that certain witnesses were and called testified on behalf of the defendants, but their evidence probative was of little or no value to the as merits the issues involved. questions presented appeal on this involve

constitutionality private legislature of certain acts of government which especial- affect the County of Knox ly system county. the school of said The chancellor de- cided complainant some of these issues favor of the being and others in favor of the defendants, result litigants appealed assigned that both have errors. assignments

We will first consider the of error (1) holding of defendants: “The Chancellor erred in Chapter unconstitutional 210' Private of 1945 Acts County County which authorized of Knox Court repair issue bonds for erection of school build ings.” special act

It is contention while defendants’ excepts operation general Knox from the relating it should bonds, law to the issuance of school govern- county be held its valid because affects the capacity. mental authorized to issued of school amount bonds one of the sum court must excess proceeds from

million above stated, dollars and, purpose erecting school are for bonds sale such making repairs, purchasing buildings, lands playgrounds, provide buildings, etc. Section to erect twenty payable provides the bonds shall be 2 of the act serially may years be issued thereof the date from from time to of time blocks or a $100,000 fraction there- county judge of. The em- and clerk are powered majority to sell “after the said bonds a vote of ’’ Quarterly County Court in favor their of issuance. Sec- provides independent of tion 8 the act “that Act this is paramount Chapter of and Acts to 69 of the Public of general special require all which and and bond acts people, any a the issues to be submitted to vote of Constitution,” to etc. Constitution or amendment the provision levying act makes the and collection County” upon property of tax “all in Knox a the sinking payment the of interest and to create fund provision the of No made retirement these bonds. arising pro for a of from the sale rata distribution city of Knoxville between the bonds general 2563. law, with Code section in accordance private authority Acting act, of this adopted authorizing County the sale of a resolution Court $25,000 said school bonds. being in as violation the act invalid

The chancellor held follows: Constitution, Section XI, of Article ‘‘ County undertakes Court and resolution Said Act grant suspend general to law and to of the State to privileges, rights, immunities individuals certain rights grant particularly granted others, and population of approximately privileges third of one contrary rights expense County to the at the Knox popu- remaining two-thirds of and interests ’’ lation. taxpayers the act that under

It conceded approximately pay two-thirds City of Knoxville who carry compelled would Knox taxes with- indebtedness proportion million dollar receiving any out direct any benefit having and without voice the creation of said indebtedness. act is direct conflict with Code 2557- sections especially

2569, inclnsive, and Section reads as follows: “In having city counties operating or cities independent county, schools of said the trustee of said pay shall over to the city treasurer of said amount of said funds which shall bear the same ratio to the arising provisions entire amount from the of this population article the as scholastic city of said or cities population to bears the county; entire scholastic of said provided, paid however, that the said funds over the to city kept said separate treasurer shall be from all other in pro- the purposes manner and for the herein ’’ county for vided said be funds to used. general The act is also in conflict with the law as found requires in 10248 Section which Code that all bonds upon any county public purposes issued the credit of for only by “shall be an election to be first held qualified county of voters such and the assent of majority votes cast election.” said determining validity of here the act assailed it is important foregoing not that it with the is conflict sec- Safley, tion of the Code. rel. State ex v. et Chmn., al., (2d) general 112 S. Tenn. 831. W. school law providing buildings for issuance of bonds for school (Code 2567) provides quarterly that the sections may courts and issue sell resolution such bonds “provided, however, not issue an said shall cent, per of to three amount bonds exceed value ’’ county. property of the taxable It was held said Safley, supra, v. that Code, State ex rel. section applicable where the are for limited not bonds issued repair purposes, is, erection school buildings, etc. We think issued bonds provided purposes, court for school as section Code, apportioned be between the 2567, must City required by Knoxville, Code, 2563, and, section private provision since the act here no assailed makes apportionment, such it The effect cannot sustained. suspend general of this act is law the state grant rights, privileges, im- Knox granted other in clear counties, not munities of Article XI, violation Section Constitution. merit in act find no the contention that the

We county in its must sustained because affects capacity. governmental In Town v. McMinnville Cur majority (2d) 998, tis et 183 Tenn. 192 S. al., W. —, ‘‘ may says: Legislature constitutionally opinion en special particular county affecting or muni act a act one capacity, cipality political governmental or alone in its contrary provisions provided special to the act is such .applicable general muni to all the law counties of a upon cipalities reasonable Otherwise it a basis. and is Vaughn, question in Clark v. void.” We dealt'with (2d) a S. and there held Tenn. 146 W. 76, 351, 177 political affecting private in Town of Athens the its act suspend operated the capacity to invalid because it was special a general conferred the state and election laws enjoyed by other not upon town which was the benefit citing ex rel. political state, State subdivisions County, S. 95 W. Tenn. 371, 170 et v. Hamilton Bales al. Conner, Hunter (2d) v. See also other 618, and cases. S. 71. 277 W. 152 Tenn. 258, govern readily a that education is conceded

It will be Tenn. et al., v. In Adams Gilliam mental function. only applied to (2d) private which act a 813, 74, 171S. W. employment of regulated Henderson school qualifications, teachers as to salaries, etc., was held invalid general it inwas with because conflict school law violation of Article Section XI, 8, of question Constitution. The same was considered State County, ex supra rel. Bales al. et v. Hamilton . beyond question govern- collection of taxes is a Municipal Corporations

mental function. McQuillin, (Rev.), Sec. 2815. chap. Legislature Priv. 1929, 1929, Acts 502, the Memphis providing

amended the Charter of a method collecting delinquent taxes, was in conflict with general law. It there was contended that the charter as thus amended should sustained act because “this only city political capacity, affected the in its and there it fore violative 8, article section of the eleven, ‘ ’’ ‘ special Constitution. act held A void because power upon particular municipality law that confers the a purchase property

to a all at tax sale to exclusion 165 Tenn. Collier, 85, others would void.” State v. (2d) 52 S. W. 363. question County in

While the act in does affect Knox vitally governmental capacity, directly it its also taxpayers rights of citizens and affects upon power confers levy upon property the' tax all the special civil exclusion benefit of certain districts be in clear This us violation of others. seems suspends Section It XI, Article Constitution. (Code 2563) general section law of State particular special school benefit districts confers county. in the of other districts same the detriment 51 Tenn. S. W. 669, v. 164 Guthrie, The case Brittain application (2d) here. defendants, has no cited of bonds case authorized issuance The statute people. without a question vote of the This be- not creating fore us. The act “the Nolensville school dis- chap. trict,” Private Acts providing 818, the issuance of provided bonds to a build school house, that each paid bond only by show on face its to be taxes levied and lying collected on lands within the school dis- trict. holdings decree chancellor the act invalid is

affirmed.

Assignment of error 2:No: “The chancellor erred holding illegal appropriation $15,000.00' county purpose budget county library for a free on the ground levy property that the tax therefor was all the on ’’ county. within July,

At the County term ap- the Knox Court proved county an item for the maintenance of a free library Library, follows: “14, $15,000.00.” empowers Section 2290 of the Code court to “ library, a library establish free or to contract for using . . services ., therefor raised funds taxes county purposes, library levied for being such a or service county purpose; may levy declared to be a or such court specific,purpose property for either tax of not more than one mill on the dollar. levied, tax, Said and when if only portions shall be on such as are already maintaining or taxed maintenance free public (Italics ours.) library.” provides appointment library

Section for the aof county library board, and Section board county library shall have control of all use. appropriation illegal held the chancellor “for the appropriation

reason that said is taken out of the com- thereby forcing the mon tax- funds, citizens and

287 payers City pay in the approximately of Knoxville to Seventy-fiveper appropriation, cent of said notwithstand- ing taxpayers fact that City citizens and in the support public Knoxville library are taxed for the of a- ’’ city. said City The record shows that the Knoxville, within County, public library Knox a free maintains at a cost of property- not less than on each cents of taxable $100 city. legislature, passing in the think We general providing county law free libraries, had library mind the there fact that were no facilities many county or school districts more less remote from the county; necessary levy seat of the that would be a tax upon property pur- library in such school district for poses; adjoining city in those school that districts or county library, county that a seat maintained free profitably library city with could contract such contemplated by legislature It never services. was county court could establish one or more free that city compel taxpayers outside the libraries pay city a tax maintenance in addition for their said paid by own such citizens for their free to the taxes library. municipal contemplated legislature really was,

What county having library a free counties not in all appropriate county authorized court was library. a free where there -But, a such establish county, library or elsewhere in the town, in the upon property levy in civil tax dis a could the court library having civil free facilities, tricts maintaining library free a should be towns districts exempt is conceded that tax. Since it from such library, support a free City taxed to of Knoxville city with the for the either contract use must library attending county schools, students library prop- establish free a tax levied erty corporate city. In thus outside the limits duplication construing both we avoid statute, service and double taxation. Bank, Tenn. 67, 80, Warren v. Union Commerce 81, 539, 274 S. it W. is said: 543, ‘‘

(cid:127) statutes, .rule for the construction of legis yield, all intention of the others must that the prevail. Birmingham, etc., lature v. Railroad must Williams S. 680, 168 Co 129 Tenn. W. 160. ., legislative “The rule is well established prevail meaning words intent the literal of the will over State, 117 Oil or found in an act. Standard Co. v. terms (N. S.), 1015; L. Board 705, 10 Tenn. S. W. A.R. 618, 100 Sav 694; 134 185 W. Solvent Nashville, v. S. 612, Tenn. ings, 157 W. 66.” 128 Tenn. S. etc., Walker, Co. v. holding this

We think the chancellor was correct appropriation to be invalid.

Assignment Chancellor error No. 3: of “TJie Chapter holding of 547 unconstitutional erred creating Board of Education of Private Acts Chapter County, Acts 260 the Private of for Knox Super County providing of-a for the election of 1925 ’’ county. Public Instruction said intendent of population only apply by to Knox Both these acts of only cor- .County. outside the of them voters In each eligible participate porate are to' of Knoxville limits Chapter Private 260 of Acts elections. Superin- County changes of the of election the method for one to that, Instruction, Public tendent of nonresident of be a eligible office,he must to hold only county, voters a resident Knoxville, but residing corporation within the of Knoxville can participate in the election. by

It is conceded counsel for that the defendants Board County superin- county Education of Knox and the county tendent of are schools officers. It has held been so by this Court in rel. State ex Tenn. Davis, v. Thomas (2d) 21 S. W. 623. (Article provides

The Constitution of XI, Tennessee 17), by Legislature Section “No office created people by shall be filled than otherwise or the ’’ Court. Since the members hoard educa- county superintendent tion are schools by they officers, elected either must he by qualified County. voters Knox private here these are Under acts assailed officers required by the If elected not elected as Constitution. qualified people, contemplates all the the election beyond county, residing* cor- not those voters municipality. ruling* porate The chan- a of the limits of assignment overruled. and the is cellor is correct, Assignment in erred 4: “The Chancellor No. by County Quarterly decreeing levy the Knox that the July, on each tax term of $100.00 1945 $.03 its Court at building, equipment repair, of property and for the able subject with the to division a fund created schools rural daily average City the attendance basis of Knoxville on of 5.” subsection section schools, under Code in levy by county is authority the court a such for 2348. 5 We think by Section of conferred subsection by levy authority 7 subsection conferred for this is the duty quarterly makes 2346, which Section of county elementary and levy taxes such “To may necessary high he to meet the county as schools budgets submitted by county board education and adopted by court.” quarterly county

The tax that is here as shown levied, Exhibit 3 to the original one of is the items that was bill, included in budget purposes. school item Another to found in-the is budget cents” “elementary schools, “high and 18 cents.” The schools, total number of in items found amounts budget $1.74. repair school their buildings and equipment an item important expense any educational program. of' kept School must reasonable state buildings and cannot be repair dependent upon daily made average n attendance Now in the case the students. instant court levied a tax for that quarterly special purpose, this equip rural schools. We think is, repair error fund holding learned chancellor special regarded part from tax should be as raised with subject division school funds and elementary at- average daily of Knoxville based City tendance. subject

An school fund elementary from county is raised city between division in the provided foregoing’ tax of as cents, special provided to distribution It is budget. subject itemized as follows: 2348(5), reads Code section trustee': duty be the “It shall distribution of all state quarterly To make “(5) between school elementary on basis of said or cities city incorporated each immediately quarter- after daily attendance average of the or chairman judge the county with settlement ly desig- school fund the state court; provided, county on not be distributed shall fund equalizing the nated as placed basis, but shall be county said to the credit of the élementary school fund to be by disbursed the provided board education as in this statute.” quarterly county lawfully levy cannot a special repair tax for and maintenance, or the the erec- tion, of rural schools purpose and use it for some other thereby city and avoid the provided division with the foregoing section of the Code. kept It must be apart separate and from all other school funds. holdWe foregoing therefore section apply Code does not special repair to a fund from a raised tax upkeep buildings county. of rural school in the assignment is

This sustained and decree of the accordingly chancellor will be modified.

Assignment of error 5: “The No. Chancellor erred in holding levy high that the fund raised 18 cents July, Quarterly made at term of schools, subject City Court, was to division with of Knox- provided by 2348(5) ville as Code section and Code sec- 2412.” tion pointed have heretofore

We out that budget purposes for school there item 18 an cents high elementary and 69 cents for schools schools. It appears from that the record trustee makes elementary fund the division derived from the levy, high cent but he no division makes school city. fund between Whether or not proper depends error construction general law. school especially defendants, contention of

It is the Knox County, 2348(5) 2'412 that Code sections do not au- high funds. It division of school conceded thorize the operates separate City Knoxville school , system. 292 general law education in 1925, that enacted chap. provides only

Pub. for the Acts, distribution elementary school between funds counties cities. and 2348(5). Code section several state counties expressly special levy and also are cities to authorized elementary high tax for both and schools. general

Now under school Code law, section provision money by made for distribution of school equalization out State of what is known an fund, as both sharing according counties and cities fund they comply whether or not with conditions. All certain kept required separate school are to be and funds 2348(1) apart from all it other funds. Section makes any pay elementary unlawful “to out school funds for high elementary high purposes school school for purposes.” Code Section authorizes school may levy “additional as courts to taxes purposes,” high necessary and this to- fund, school high apportionment gether schools, shall be with state applied apart separate kept from all funds and other purposes. high exclusively school considering legislature the intention In we look to funds, of school distribution .must general every words, law. other school section subject, dealing that of with the same all Code sections pari When materia. be considered in must education, legislative they appears evidence this is done, of funds raised be no distribution shall there intent that high high schools between taxes operated by cities. maintained schools provision 2348(5), supra, is clear In Section only elementary school funds distribute shall trustee provision daily average attendance. No the basis of general school any section other this or made in high law a division of school funds between city. agree complainant’s We cannot with counsel that Code section This authorizes a division of school funds. solely money section relates division of derived from the sale of bonds for the erection of houses, school approved by general etc., which have been in a voters county election. only subject,

Now e., since the statute one i. mentions justified elementary the division of school we are funds, concluding,- inferentially, high in school least, at legislative by were Nor- funds excluded this direction. mally recognized by a rule of well the construction, it is subject courts, that the in an means of one act mention subjects. implied prohibition the of exclusion other This 2348(6) stronger by the statute in the instant case made ‘‘ county duty which To makes the trustee hold it separate be disbursed high all in account to school funds county county board of education for on warrants of the high purposes.” school provision, foregoing we to addition the requires distribute ele the trustee to

find Section proportion city county in to mentary school to funds county by average daily the attendance certified the as superintendent Again made no mention is of schools. high funds. to of school as distribution provided taxes that the additional it is In Section 2413 pur- high county quarterly school levied apportionment* poses, together with state be high known fund to shall constitute a schools, applied exclusive- county high shall fund, school purposes. ly high school objection any hardly constitutional valid can

There property all a tax which levies to a statute county, allocating the benefit of the without part county. of it to cities within While there is an apparent injustice compelling taxpayers citizens and City pay support Knoxville to tax to county high taxpayers schools, we think are in- these having public terested in all over Knox efficient schools County. city As indicative of such an interest, board complaining any education in the instant case illegal Surely distribution of funds. school people interest which the of Knoxville have in beyond education extends their own front door. if But, injustice provide flows from failure for a division high apportionment school of it muni- injustice, cipalities, any, if must be corrected legislature. authority have courts no down strike opinion operates unjustly a statute because their some instances. think

We learned committed error Chancellor part assignment decree his is sustained.

Assignment of error 6:No. “The Chancellor holding appropriation gen erred in unlawful the in the purpose budget County Quarterly Court, eral of made the pay July, term, at its of salaries 1945, the $1200.00 to of the Board of and the Education, of the members appropriation pay salary to of clerk of the the $2100.00 county officers.” All of said are of the board. officers budget regular county purpose county The court its following: among provided, “Official items, other the ” specified salaries are The above salaries, $36,140'.00’. ap- that said item. The chancellor held included in this purposes propriations not and could were for school county general cited as No case funds. made out of appropriation. authority holding be a valid this clerk board of of education and said the board While

295 paid county are of their must be out officers, salaries general education fund. 427,

In rel. 124 S. 127, 136 State ex v. Tenn. W. Pollard, appropriation pay there an the erection was repair buildings general county fund. of of school out legally It court there held could was general purposes. appropriate for school apply pay appropriations rule must same assign ment salaries of school officials. This ment overruled.

Assignment error “The Chancellor No. 7: illegal appro holding unconstitutional and erred Quarterly County priation its Court at $3500.00 July, 1945, term, for Committees.” Court complainant’s contention chancellor sustained appropriation “the unlawful and that legislature purporting to authorize acts various composed quarterly county pay court committees unconstitutional and void own members are its Constitution, 8, of the XI, of Article Section violative general with the law as set conflict that said acts and 1876.” 1875, 1874, sections forth Code law of that contracts it is settled this state thinkWe with of the county members made County, Hope illegal v. 101 Tenn. Hamilton and void. are 116 Alexander, v. Madison 437; S. W. 47 325, County, Cagle Benton 604; v. S. Tenn. W. (2d) 1. 235, 181 S. W.

Tenn. supra, page County, Hope Tenn. at Hamilton v. policy page “It it was said: is the at W. 47 S. prohibit . court' . members . law to any making for their own members with contracts from public compensation out of for 'purpose which calls ’’ treasury.

The Code sections which the chancellor opinion clearly rested unmistakably support his him. Section 1874 reads as follows: “It shall be lawful any for person officer, committeeman, or director, other duty whose any is to vote for, let out, overlook, or superintend, any manner any to work or in which contract (cid:127) any municipal corporation, county, or shall state, may or directly indirectly to in interested, ’’ any terested in such contract. wrong that is denounced these Code sections contracting that of officers with to themselves paying render to the services themselves county treasury, “using such out of services thus public private their functions to subserve their duties supra. County Alexander, interests.” v. Madison All illegal such contracts are to be declared and unenforce- able. Savage Mynatt, v. 156 Tenn. 119, 123, S. W. speaking Court, Mr. Justice Chambliss,

said, meet “It evident intent the lawmakers to public menace far- to funds drastic and serious reaching provisions.” suggestion give our are unable to assent to

We application payments statute has no performance implied contracts, services in court elect themselves where members compensation, remaining silent as committees, pay appropriating themselves. To hold later so who to an invitation to have con amount officials would treasury the law and to circumvent trol of the gotten gains. protect ill their themselves Christenberry, City Knoxville v. The case of Hope distinguishing v. 98,W. 147 Tenn. 247 S. application County, supra, to the no instant has Hamilton

297 regard ease. The decree in chancellor’s is correct assignment and the is overruled.

Assignment No. of error “The 8: Court erred declaring illegal general budget 33, Items 16 and adopted by Quarterly County July, at its 1945,. Court being Emergency, ‘Item term, $1,000.00’ 33, ‘Item 16, declaring $3,000.00’and further erred Miscellaneous, illegal County budget adopted Item 2 in the Commission Emergency, $2,000.00.” Quarterly July at its made the Court term following appropriations: Emergency,

16. $1,000.00 Miscellaneous,

33. $2,000.00 complainant’s upholding The chancellor, contention, illegal appropriations held said to be and void “in that’ purpose they taxpayers for did not inform the appropriations were to be and further used, said delegated thereby quarterly to because according power dispose county judge to funds said judgment that own to and discretion, his appropriations were not said additional reason public purpose.” a holding chancellor was correct thus think the

We repeatedly appropriations It been to be invalid. has these right taxpayers know what to have the held may appropriated, being purpose are misapplication. prevent their appeal to to the courts page 136 Phillips, 574, 568, Tenn. at 175 In Robbins v. stating J.), page (2d) after 509 C. at W. 507 S. (Geeen, purpose right what taxpayers know for to have that the being are taxes being know their they taxed and to are necessary to enable applied, properly “This is it said: purpose levy, challenge for a if taxpayers it levy authorized, law, if authorized compel application purpose of the tax for which . Kennedy County, Montgomery in fact levied. v. Tenn. 38 W. 1075; S. Southern Co. v. Railroad County, Hamblen 115 Tenn. 92 S. Southern 238;W. County, v. Railroad Co. S. Hamblen Tenn. 97 W. 455. therefore, We when the think, court under appropriate county purpose takes funds that appropriation distinctly appear. must In order that taxpayers may challenge appropriation, such an if for proper compel purpose, may an and unauthorized its application, purpose.” if for authorized an County, Tenn. 526, In Railroad Hamblen 533, v. ‘‘ following language The tax 238, S. is used: 240, W. every payers right county know for what have a purpose they being taxed, also to know that are and specific purpose any are from them for collected taxes applied purpose at not to other, and some to such according ideas county to their and officials, discretion of expediency.” public policy or According authorities, thefee well-considered clearly illegal The appropriations void. and are above overruled, t assignment of error is Assignment “The 9: Chancellor error No. appropriations illegal holding. declaring and erred Quarterly by institutions charitable made to July, follows: as term, at Court its Orphanage ; $1200.00 Colored 30. Knoxville Item 250.00; Army 40. Salvation Item 2000.00'; Orphanage 42. St. Johns Item 500.00; Aid 45. Travelers Item 250.00.” America 46. Volunteers Item in the made appropriations were foregoing The original 2 to No. Exhibit budget purpose as shown are items dharged these complainant The bill. private purposes pass into the hands of either private corporations private not individuals under public ap- justify control. The defendants seek to propriations being authorized Section 10242 of the provides: may which appro- “The Code, court priate moneys (3) ... as follows: Poor —For the ’’ support poor, of the and idiots. lunatics, provide And also 481G Code sections which as follows: ‘‘ may support The also let out of the poor, occcupancy poorhouse with the use period exceeding years.” farm, for a three may any person “The court contract with also for the support any county, upon poor or all the such may period ex- terms as deemed hot reasonable, ceeding year.” one chancellor held that court violated

Article Section II, Constitution, forbids appropriated public pur- than funds to other sought poses. county judge have defendants purposes appropriations explain which these were be in- madé, but he held to irrelevant and wdiat said was competent. of There can be no doubt of the correctness ruling. this County, King held in v. 67 Tenn.

It Sullivan true, is justices county are the exclusive court that persons provided “poor judges for are of whether the persons” But ease the in the of lawr. that sense appropriations were made in favor that the record shows persons. indigent parties court The mentioned as of duty delegate private charity the of to did not some provided selecting for at entitled to be those are who sought expenso public in the case. to be done instant isas quoted The Code sections above and relied on de authority appropriations fendants as for these are in applicable. seriously county It is not contended that the agencies any court had contract with these several or any support anybody. one of them for of Those to money paid purpose. any whom the could use certainly contemplated legislature by the It was not that county appropriations make court could for the care poor persons judgment of and leave to the and discretion persons right designate third to those who of the sole are public charity. Our entitled have the of cases benefit cited, need effect numerous, are and that not power public appropriate no has funds public purposes. construing for other than In powers defining the rule of statutes courts, prevail. Hagan Black, v. “liberal construction” does (2d) 290, 17 159 Tenn. S. 908. W. assignment overruled.

This is

Assignment 10: “The error No. Chancellor complainant.” attorney’s allowing any fees erred attorney’s allowing that fee stated chancellor preservation pro- complainant’s in the “resulted suit relief of Knox that tection granted and of its of said in the interest herein combating taxpayers.” defendants, citizens opinion no fund has contend that the chancellor, any protected fee could out of been recovered or complainant the result paid; if successful that even only would saving future taxes be to effect will City taxpayers from collected otherwise be County, not before the Court. who are Knox Knoxville material deciding question it is not before us the Court. they are not before

301 Complainant’s has counsel us referred to Grant v. Co., Lookout Mountain 93 Tenn. 691, 90, S. W. Fidelity-Bankers L. R. A. Carmack v. Trust Co. (2d) authority 180 Tenn. al., et S. W. in support of the decree of the chancellor. great public a

It is true that counsel has rendered taxpayers County, service to of ICnox he paid a do think the should he reasonable fee. not We support cited decree which cases recites that “it is way paid judg- in to be the same manner as. other against paid.” The are decree ef- ments said open judgment against county. It fect is an thus appears which a that there no fund out of be fee could complainant’s attorney not satisfied. Of does course, express implied, any contract, have either or claim to In the cases on be enforced this case. both relied specific property protected, there were counsel items minority actually In if recovered. the Grant case the enjoined estate, valuable real sale of stockholders specific property, of it before and the owners were i. e., large prop- In the amount of the court. Carmack case bequeathed erty to the been American Red Cross had fee was fund ordered' out it was specific property pointed paid. both there cases which a lien could declared favor of coun- out sel. in,

Now in the instant case suit results nigh preventing funds. The well the waste n universal are where counsel awarded fees rule is that paid specific must be out of the fee allowed the court protected specific property or out of recovered, fund either' loss, contract, or rest against must threatened underlying implied. principle express the declara re- fees that there been a has lien counsel tion 302

covery money property plaintiff of or in behalf of a litigant. supra; Grant v. Lookout Mountain Black Co., . burn v. Clarke, 85 Tenn. 3 S. W. 505 506, v. Pierce 572, 1 it Lawrence, Tenn. W. was S. specific property, held if the suit is not for or land impound process or property does such some places custody which it in the of there can the be court, Light Memphis no lien. See also In re New Gas Co. Rep. 105 Tenn. 80 Am. Cases, 60 S. W. St. 880. The claim of counsel the instant for a reasonable case against fee the but we meritorious, defendant most is a have the in vain for rule of law which searched books purports awarding rendition a to authorize the of decree attorneys’ protecting for fees services illegal appropriations. treasury being from raided represent not so much we have reached conclusions there will the law. Since of the will of Court as impounded pro- property either here, no fund or by any be which lien can court, order tected enforced, to be results no contract declared, erroneous. be held must of the chancellor the decree assignment of sustained. error is This assign complainant’s next

We will consider adjudging “The erred 1: Court error No. ment Community Can the Gibbs appropriation for of $3500.00 Karnes for appropriation nery $3500.00 appropriations com Cannery Community lawful to be county funds.” mon ap- (1) because error that this insisted

It is taxpayers to advise propriation was insufficient (2) spent, and were purpose which the for (as purposes private purposes or school if it was appropriation testimony), unlaw- Avas by oral shown ful. wholly

The record before us is indicate insufficient to purpose appropriations. of these There filed with original copy bill Exhibit a certified No. “Budget Purposes,” which the follow- shows ing among many appropriations items, others, for were made: Community Cannery.$3500.00

“Gibbs Community Cannery “Karnes .$3500.00” nothing money find indicate We that this is to private purpose. otherwise- than oral used testimony introduced to show that to be in “an used program” training additional irrelevant and incom- petent. Another witness testified that food that was people plants canned these was for who their own did canning. judge The “I also follows: testified as positive, popular I think am later on it not but became so people City buy even Knoxville from could peas’ things and various and take them down beans and cannery that-community can them.” testi- and This wholly mony and in- likewise held to be irrelevant competent. True, Tenn. 95 S. W. 294, 314,

In v. State says, “The manner 1033, Mr. Justice Shields pro specially appropriation shall be made is compliance by with without for and statutes, vided disposi legal appropriation can no there be and same public moneys.” tion of supra, page Hagan Tenn. at 17 S. Black, v. speáking (2d) page Mr. Justice at Swiggart,

W. appropriating funds held that courts the‘Court, expressly by law. are authorized as such are confined ‘‘ purposes following language The for which is used: money specifically appropriate may are gen- in*the enumeration enumerated, set out eral Code express of 1858 is followed limitation: any'other ‘But purpose, not for specially provided unless ’ ’’ law. permanent

We hold, therefore, the minutes, or purpose records of every the court, must show the appropriation may to the end that such fund used any purpose, taxpayers ma,y other and that know purpose the real being for which are funds used. appropriations

On the face of the record these are county reserving without limitation their as to use, no right way of control to the manner are to be authorizing used. There is no law Knox buildings community cannery to erect in which a tois operated private for the benefit of citizens. More buildings canning over, if such are to be erected part program, business carried on as a of an educational appropriated the funds must be taken out funds, of school not common funds, as held in State Pol ex v. rel. supra. lard, foregoing assignment of error is sustained. except

The decree of the chancellor is affirmed, as other- opinion. wise modified appeal paid

The will be costs the chancellor ad- as judged in the lower court. costs Petition to Rehear.

On petition complainant a The rehear, has filed com- (1) important question plaining that an overlooked was original opinion, that the chancellor was to-wit, appropriation holding error an of $1,000 for the legal, Nursery being “Knoxville School” it Item was county purposes; budget (2) for i'n the Court disallowing attorney a fee for in error in reasonable complainant’s entering judgment in not a solicitor, and against county compensation for $2,500 as for his (3) holding levy services; and that the 3 cent for build- ing, repairing, equipment rural schools was subject county City to division between the and the Knoxville.

Responding alleged illegal appropria complainant tion mentioned, above that, contends “It was county quarterly unlawful for the court take common county City funds and turn them over to the of Knoxville, purposes.” appropriation or use them for school (1) ap cannot he sustained two reasons: it an is propriation purposes for school out of raise funds general county purposes, (2) taxation for it invalid is appropriation poor. an as care In State ex rel. v. 124 Tenn. Pollard, 427,W. 127, 136S. expressly county it 428, was held that the court has no power appropriation general county to make an out of county special purposes,” legally “for cannot appropriate any part of the for the fund maintenance of public “while the schools; that maintenance of county county purpose, in the not, schools a under it is county purpose special general our statutes, a hut ” purpose. , seriously does not that it should contend caring sustained valid means of for the as although appropriations poor, had been made similar county upon theory, the Knox- $1,200 such as Orphanage, Orphanage, $2,000'to ville St. John’s Colored etc. quarterly law that the think settled

We appropriate money individual, to an an cannot unincorporated society, taking care of aas means poor, made of a contract with in fulfilment unless provided county poor, persons the care of the such 306 may,

in Code sections 4816 and 4817. Such contracts upon good (Code 4819), cause'shown be set aside section making,due court after allowance for the they operation. time have been in The in chancellor was legal holding appropriation. error in this to be a opinion disallowing of our correctness attorney theory challenged fees fees such part may and that case, taxed as costs specific if the that, it was error hold suit is not for impound property, property not such land or does process places custody the court, which some lien. there can be no Meadors, cited Bank v. has American National

Counsel (2d) authority 86, for tax 324, 87, 162 36 S. W. as Tenn. part ing attorney the costs. instant case as a fees questioned appellant case in the Meadors fees guardians adjudged to be litem were allowed ad they aid proper rendered their services in “had because proper our of the estate.” administration case, original opinion pointed in the out that Grant it was L. R. and the Carmack 27 A. Tenn. S. W. prop (2d) 351, 353, certain case, 571, 177 180 Tenn. S. W. preserved. For this protected erty from loss or was complainant’s support conten not the cases did reason only rendered the counsel case In the Carmack tion. Cross, Red American but to Carmack, Mrs. services beneficiary” was the will. It principal under other “the no “there would services but for their held there appears It executors.” thus of these hands assets It paid the decedent. estate of out of were that fees con argued by that the estate counsel, may be true, specific property item no kinds of various sisted contention. in this no merit There is to. referred “specific opinion original in the is made mention While property” may paid, were of whicli out be the words fees meaning a not in a narrow sense used or as restricted particular clearly property. made kind of The issue was property, regardless char- that there of and was its kind will under the acter, saved for the of benefit beneficiaries were before under the control who of executors the court. University by case cited

Another counsel is Vanderbilt (2d) 83, v. Mitchell, 86, Tenn. 36 W. S. paid

attorney’s “to from the were fees taxed as costs case fund.” In this income the trust accumulated from University, will of trustee under Vanderbilt seeking a bill a construction Mitchell, E. Thomas filed approving a a decree trust, of the terms or express the testator an direction of deviation from question passing upon tees, of counsel creator. of all counsel services Swiggart Mr. “The said: Justice proper preservation execu have to the contributed equity that a trust ‘It tion a doctrine of the trust. of expenses ad oivn its right should bear the fund of ” ours.) (Italics Citing authorities. ministration. ‘‘ great With agree deference to we counsel, cannot University trust funds hands Vanderbilt were possession no more in the or control of the court than ” County Treasury in the were the funds in this case. Nor agree treasury (of can that “The County) we Knox was impounded as much as were the trust in the funds Vander- bilt case.” Regan Babcock, v. case Minn. N. 243, 264 W. support complainant’s does contention. In this attorney paid

case allowed fees were and ordered partly money out of in the hands clerk of the court ($33,597.30) balance out a.fund to be retained pursuant stipulation parties to a between the state

to the holding suit. We are with the accord (196 page 807) page Minn. at 264 N. W. at attorney may equity fees allowed a court of “out of brought or where a saved, recovered suit is representative capacity estate, an benefit municipality, (Italics beneficiary.” ours.) other It properly there was held that in these circumstances attorney money had a lien common-law the sum of complainant recovered. In the instant case sued enjoin taxpayers appropria illegal himself and other Nothing money. sought tions of to be recovered on (Knox County beneficiary. any behalf or other While Knox was the Court a defendant- before as any litigant, treasury sense holding custody know of the court. We case no intimating by that, even counsel have bill in where enjoined equity illegal appropriations, is au the Court upon county treasury lien for thorized to declare paid attorney’s costs, or to order such fees fees, may This have been. however meritorious services assignment overruled: must be response assignment of error to last repair levy be the 3 for of rural schools should cent City of we

divided between Knoxville* Begardless making authority a division. no for such find question authority levy the tax'in of whether the section 7 or of Code Subsection found Subsection levy cannot made. claimed the division so 2346’, repaired specify other are what schools does not by counsel conceded “rural It is schools.” than provision in the for division law no there is for the except bond issues that funds raised fund, of scholastic purpose the basis be divided on are to same provided'in 2563. We cannot section Code population as capital provides a out- agree that, where the statute repairing building lay by of bonds the issuance requiring a of such division school'houses, special city operating school between repair likewise system, rural must schools tax for the require division, such a If the statute fails de divided. judicial authority direct we are without fiat. passing purpose granted petition pretermitted inadvertently the al- question is, —that nursery Knoxville illegal appropriation for the

leged complained respects, of are errors In other school. petition denied. and the overruled

Case Details

Case Name: Southern v. Beeler, Atty.-Gen.

Court Name: Tennessee Supreme Court

Date Published: Jun 1, 1946

Citation: 195 S.W.2d 857

Court Abbreviation: Tenn.