Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-09

does not follow that determination on IL
part of large number Of the people {
= the city will Justify court in anticipatin
!, this result and in regarding it as such i
= reparable damage as will Justify an injunC
: ton on that ground, or is it sufficient as
ground for well-founded apprehension {
> injury demanding the extraordinary RI
straining process Of a court of chancery.
8 If the determination OF taxpayers I
; withhold the means of support from ih
! city government in relation TO any project
interest or institution, and the ininFy tha
, would result from refusal to paw taxes
, constituted a ground FOR enioining th'
action of the city government or its agents
the extraordinary power of chaneery woul6
be invoked in numberless instances to th'
complete destruction Of the efficiency of ih'
city government.
1t might be that The refusal of large
I number Of the people TO send their children
70 school if the defendants should 60 intC
Office would produce some confusion, bui
unless this would give a well-founded APP
prehension that il will prodace irsepardbtt
mischief or damage, it would not constitute
a sufficient cause for enjoining the defend
ants from taking charge of the schools Il
| hhCt hau bccu lcSdllg clcCtVu'
There is, l am satisfied, no equity in
complainants' bill emitting them TO an in
junction, unless the allegation that the
compliments were unlawfully dismissed
from their Office constitutes a ground for the
interference of the court
1t is clear that if the action of the City
Council in Diminishing complainants by a
vote of the Board of Aldermen, and by a
vote of fourteen to hour in the Common
| Council, did not amount to a concurrence
of two-thirds of both branches of the City
Council, that action was not had in pursu-
ance of the law which was made to govern
the City Council in that respect, and it
would follow that if that action was ille-
| GAL the defendants were not duly elected.
| That law is in the following words (see
section Is, act 1851: "The Board of AL
| dermen shall consist of one member from
| each of the wards of the city. The Com
| mon Council shall consist of two members
| from each Of said wards, chosen by the
| qualified voters of their respective wards
which boards in their joint capacity
are denominated the City Council they
shall hold their meetings separately, ard set
such times as may be determined by joint
or separate rule of action. All measures
originating with either house of the City
Council shall be transferred TO the other
for their action and concurrence. No bill
shall become a law without first being
passed on three several readings by ma
jority vote of both houses and be signed by
the Mayor" land by section Is of said act)
''they (said City Council) shall also have
full power, hcO-thirds Of both branches Of The
City Council conctTrjng, to dismiss from Of
fee any person that has been or may here
after be elected TO ell any Office, created by
the ordinances of the Mayor and Alderman
heretofore, or that may be by the City
Council hereafter. And they shall have
and possess full power to abolish any Office
as above, that has been or may hereafterbe |
created
The counsel of both parties in this appli- |
cation have shown great zeal in searching |
ont principles and authorities, upon the |
point as to whether the statute of 1858, |
giving to the City Council of Nashville |
full power to dismiss persons from office, |
two-thirds of both branches of the City |
Council concurring," required that two
thirds of all the members of said Council |
should vote for the dismissal of complain |
ants, or whether two-thirds of quorum of /
the Common Council voting therefor, in |
addition TO the vote in the Board of Alder |
men, would not amount TO a compliance |
with the statute. Before proceeding to |
announce my conclusions on what am |
satisfied is the point upon which the ques-
ton In this case turns, | will say that while |
l entertain very great respect for the |
opinion of the counsl who have sought 10 |
~, q ,4 4 LII
the ordinance Diminishing the complainants, !
to inquire into the question as 10 whether
it was passed in pursuance Of the statute, |
| am satisfied that neither the cases of |
Sherman as. Story, 80 Cal; Ferguson rs |
Miney and M. Bank, Sneed, COS; the
State rs. Young, n. j. Rip; The People |
as. Purdy, 2 Hill, 35, and other cases in
New York, commented on, or the cases in
18th, 18th ald 10Th Illinois reports, are
either decisive of the question in this APP |
plication or throw much light on it. Nor
do l think the Congressional precedent
relied on, or the rules of the Senate of |
Tennessee are at all conclusive. There ia
in my opinion a wide difference between the
question as to the power of courts to look
to the journals of State Legislature, al to
whether an act of the Legislature was
passed according 10 the forms prescribed
in the constitution and the power of The |
courts over the question of whether an Or
dinance which is nothing more than by
law of municipal corporation, was legally |
passed. In the authorities cited by coun-
sci, the power of the courts in the matter
of examining into the manner Of passing
statutes by the State Legislature was dis
cussed; in this case no such question does
or can arise, because it is not the act of the |
Legislature authorizing the City Council to
dismiss officers which are impeached, but
an ordinance of the City Council diminishing
the cOmplainants. In this case the act of
the General Assembly, which il is not con-
tended was unconstitutional or improperly
passed, prescribes the mode in which the
bylaws or ordinances of the corporation of
Nashville shall be passed. and among other
PROVISIONS is one that the City Council
"shall have foil power, two-thirds of both
branches of the City Council concurring, to
dismiss" etc The question | have to de-
termine, therefore, and the one upon which
this cause turns, is whether, assuming that
the court of chaucery of Tennessee has
jurisdiction to decide the point in this pro-
ceeding, the ordinance dismissing the |
yum hd9 anu odhh
having been passed on its third and last
reading by eleven members voting for ii.
1t is laid down in Angel and Ames on
corporations, that if the charter prescribe
the mode 10 which the bylaws shall be
made and adopted, in order, to their vail
dity, that mode must be strictly pursued, |
and in the same authority that by-la VS. in
fringing on the statute relating to the cor
poration are void. See also l Lord Ray
mond, 5S5. The true test of all bylaws,
says Mr.. Justice Wilmot, is the intention
Of the Crown in granting the charter and
the apparent good Of the corporation. In
the same sense it is said Rex rS. Spencer, 8
Burr by Mr.. Justice Yates, that CORPORA
tions cannot make bylaws contrary TO
their constitutions; if they do they act
without authority and they are confined in
their operations to the mode and manner
prescribed. 2 Kent. 36l. If there be
any ambiguity on the face Of the charter it |
is the province of the court to expound it.
II Selwyn Mes Preus, ll44. When the
words are not explicit, the intention is to
be collected from the context, from the oc- |
casion and necessity of the law from the
mischief felt. and the obiects and remedy |