190 Tenn. 626 | Tenn. | 1950
delivered the opinion of the Court.
On June 2, 1948, in the Chancery Court of Hamilton County, the State Board of Architectural and Engineering Examiners, which we shall refer to hereinafter as the Board, filed its original bill against the defendant, Boy E. Blalock, to enjoin him from practicing engineer
The defendant then answered the bill as amended, and in his answer set out the following defenses:
(a) That the Board did not come into equity with clean hands because of its refusal to obey the provisions of Chapter 175 of the Public Acts of 1937, and issue a license to the defendant.
(b) That the Board had been guilty of laches.
(c) That the bill as amended, attempted a collateral attack on Chapter 175' of the Public Acts of 1937.
(d) “. . . the defendant shows that for many years prior to the passage of the Legislative Act authorizing the formation of this board, and regulating the practice of engineering in the State of Tennessee, he had practiced the profession of engineering, and has a prescriptive right to .practice the same, and that if he made application at- some subsequent date to take the said ex-
At this point in the litigation, the State Attorney General filed an intervening petition in which he asserted that the Board’s action in denying defendant a license had been based on a written opinion from the Attorney General that Chapter 175 of the Public Acts of 1937 was unconstitutional, and he then in the petition, asserted the unconstitutionality of that Act. In substance, the prayer of the intervening petition was that the defendant be served with process and a copy of the petition, and that Chapter 175 of the Public Acts of 1937 be declared unconstitutional. The petition was filed and process issued for the defendant. When process was returned “not to be found” motion was made and granted that the prayer of the petition asking for process, be stricken, and that the cause be heard on the pleadings. Such hearing was equivalent to a hearing on bill and answer. The pertinent parts of the decree entered at that hearing are as follows:
“This cause came on to be heard before the Honorable Alviet Ziegleb, Chancellor, upon the motion of the complainant, State Board of Architectural & Engineering Examiners, for a hearing on the bill and answer, upon the original, the amended and supplemental bill, the demurrer of defendant previously overruled by the Court, the answer of defendant and the intervening peti*630 tion of the Honorable Boy H. Beeleb, Attorney General, and the entire record, npon argument of counsel, from all of which the Court is of the opinion and so finds, that the pleadings are insufficient to enter a Declaratory Judgment upon the question of the constitutionality of Chapter 175 of the Public Acts of 1937, on the grounds that the defendant is not before the Court on the intervening petition of the Attorney General; and that the answer of the defendant is sufficient to prevent the Court granting the injunctive relief sought in the absence of proof, and that the bill should be dismissed.”
From this decree the Board has perfected appeal and states in its brief that the two questions presented are:
“(a) Is Chapter 175 of the Public Acts of 1937 unconstitutional?
“ (b) Should appellee be enjoined from practicing engineering?”
The question of the constitutionality of the Public Act of 1937 was properly raised only in the intervening petition, and we agree with the Chancellor in holding that since no service of process of that petition was had upon the defendant, and since his counsel made no agreement by-which the service of such process vas waived, the defendant was not before the Court on matters raised for the first time in that petition. Majors v. McNeilly, 54 Tenn. 294, 300; Gibson’s Suits in Chy., 1937 Ed., Secs 794, 796.
As to the second question, the action of the complainant in securing a hearing of the cause ‘'on the pleadings” was equivalent to a hearing on bill and answer, in effect, the complainant demurred to the answer and so admitted every material fact there alleged by the. defendant. The Board so admitted the allegation of
The decree of the Chancellor is affirmed.