State ex rel. Timothy v. Howse, 132 Tenn. 452

132 Tenn. 452 | Tenn. | 1915

MR. Justice Williams

delivered the opinion of the Court.

This case is before us on petition for writs of certi-orari and supersedeas to review the action of Hon. Thos. E. Matthews, circuit judge of Davidson county, in suspending from office petitioners, H. E. Howse and Robert Elliott, mayor and commissioner, respectively, of. the city of Nashville.

This suspension was ordered by ■ the cirenit judge in a proceeding begun by petition of accnsation filed by ten or more taxpayers and freeholders of the city ■under the provisions of Acts 1915, chapter 11, commonly known as the Ouster Act, in which Howse and Elliott are charged with acts of m'alfeasance and illegal conduct in their respective offices.

After hearing the petition of accusation and ouster and certain proof tendered as by way of affidavits and as documentary evidence of admissions of record made by one of the accused officials under oath, the trial judge entered an order suspending the officials.

The petition filed before us challenges the constitutionality of the Ouster Act, but in the argument of the case at the bar of this court the constitutional' questions were not debated, but were passed over with the statement of counsel of petitioners that it was not his purpose to argue same. We therefore treat ’the act as constitutional, so far as it is thus challenged.

Arising, then, for consideration as a preliminary question, is whether this court, or the court of civil appeals, has jurisdiction where writs of certiorari and supersedeas are sought in a case such as this. We are of the opinion that the jurisdiction to entertain the petition for such writs is with this court.

By sections 9 and 13 of the Ouster Act it is provided that appeals in proceedings instituted thereunder shall lie to the supreme court, where final judgment shall be rendered, and in cases when appeals are provided by law to lie to this court we hold that the power to revise, regulate, or review orders, judgments, and decrees of circuit and chancery courts by certiorari or sv/persedeas is with this court. Acts 1907, eh. 82, sec. 7.

The main contention of the petitioning officials is that the order of the court below suspending them was not rendered after a “full hearing” upon the charges contained in the petition of accusation. This insistence is predicated upon section 10 of the Ouster Act, which provides that no person shall be suspended without five days’ notice of the application for the order of suspension, and “said officer shall have the right to appear and make any defense that he may have and shall be entitled to a full hearing upon the charges,” etc.

By the terms of an earlier section (7) of the act it is provided that “the proceedings in ouster shall be summary anda triable as an equitable action,” regardless of the court in which the same are begun. The act draws a clear distinction between ouster on final hearing and a suspension on full hearing pending a final hearing,. and we are of opinion that the order of suspension is properly to be likened to the interlocutory orders entered in the usual equity proceeding, such as decretal orders for the appointment of a receiver, or for injunctive process. The suspension is to be by “order,” and clearly to be differentiated from the final decree of ouster. The argument is advanced by counsel of the petitioners that an order of suspension cannot properly be entered until the full or entire proof is adduced by both the movants or applicants and themselves. If maintainable, this would put it in the power of the accused officials to delay a suspension until the court had before it all the proof requisite to decreeing on final hearing; that is, proof which would support a decree for an outright ouster from office.

It cannot be that the legislature did not have in mind the difference between interlocutory relief by order and relief on final hearing in equitable proceedings, when it thus provided for the character of the proceeding in detail. As applied to proceedings that look to interlocutory relief in an order to be entered, a “hearing,” or “full hearing,” provided for by legislative act, does not, it must be conceded, mean “final hearing.” It means, in the terminology of the law of equity practice, the hearing of a motion, or “application,” as the act now under construction phrases it, for interlocutory relief. The expression “full hearing” means no more than that the chancellor, or trial judge exercising the powers of a chancellor, shall give ample opportunity to both sides to make a showing fairly adequate to make manifest the propriety or impropriety of the step asked to be taken by him.

Touching the character of the proof, we are of opinion that it need not necessarily be adduced as is done on a formal trial on the merits. In matters interlocutory „ in character a hearing means “the introduction of evidence thereon by affidavit or otherwise, the argument of solicitors, and the order of the chancellor.” Root v. Mills, 168 Fed., 688, 94 C. C. A., 174; Taylor v. Breese, 163 Fed., 678, 90 C. C. A., 558; Anderson v. Commonwealth, 105 Va., 533, 54 S. E., 305.

The circuit judge admitted and considered a .transcript of a proceeding pending at the time in another court, the chancery court of Davidson county, to which the accused officials were parties and sought to -be held liable for the same acts. In that transcript were incoporated the depositions of witnesses who had been cross-examined by their counsel. These were considered as of the nature of affidavits by the trial judge. In addition there was so incorporated a deposition of Mayor Howse, which was clearly competent as an admission under oath. We think there was no error in this.

The counsel of the petitioning officers of the city did not offer their clients as witnesses, nor did they offer any witnesses for examination. They did offer a bit of documentary evidence, which was admitted and considered by the court. If the hearing lacked anything of being full, this was not attributable to the trial judge, so far as this record indicates.

Had the defendants tendered testimony of witnesses, doubtless the circuit judge would have heard them, as it was his duty to do, provided their introduction was not carried to a point of manifesting a purpose to delay action on the application for a suspension— a preliminary proceeding of the character we have already indicated.

Counsel for the defendant officials urge upon us the view that a proceeding under this Ouster Act is criminal or quasi criminal in character. Similar acts have been passed by the legislatures of several States, and have been construed by the courts to provide a remedy civil in character.

By these modern statutes, which make no provision for fine or punishment of any kind, the proceeding is plainly intended to rid the public of an unworthy servant, and is in this particular entirely different from common-law proceedings criminal in nature.

The proceeding is primarily for the protection of the public, and not to punish the defendant as an offender, and it is civil rather than criminal in nature. Territory v. Sanches, 14 N. M., 493, 94 Pac., 954, 20 Ann. Cas., 109, and note; Skeen v. Craig, 31 Utah, 20, 86 Pac., 487.

It is urged that the act is not retroactive, and that the circuit judge should not have heard evidence touching, or have considered, any act of the officers proceeded against that antedated the passage of the act. We are of . the opinion, however, that the circuit judge properly held that the act undertook to make nothing illegal that was not illegal before the act’s passage, and that the act is merely remedial in nature, and that it only provides a new remedy.

We are of the further opinion that no sufficient showing is made by the petition and its exhibits for writs of certiorari and supersedeas under Code (Shannon) section 4853; and they are denied the petitioners.