Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-09


the receiver would not the order be
nulliIy, aud the officer who had the pr,
cess trespasser if he we're to seize ia
corporation property, it being no party I
this SUIT A Judgment rendered against
party not before the court, b. process {
law, Is roid, and the officer trespassel
who levies the execution. I sm asked :
take from party who has the right to su
and be sued 10 the courts Of the country,
million dollars worth of property, and Iha
party not before the court, and 40 party 4
the suit. Surely this cannot be do0e.
| Ii is insisted the defead ants constitute !
majority Of the Board, therefore / can &C
upon the corporation through them To,
law vests tbs right Of property in the co.
poration of the city of Nashvi le, and Go
10 the defendants They have 20 inleres
except as mere efficers-have no right Of
power 70 dispose of the property except il
the mode prescribed in the charter.
II is alleged they are usupers, and have
40 right to control the city property. The
bill charges that they are incompetent by
want OF capacity to execute the delicate
trust confded to them, and that they have
not the freehold interest required BY tbs
! charter.
have examined the charter Of the cor.
| poration, and have been unable TO fad any
provision ia it requiring particular cap
aeity for business 10 qualify them to hold
office. The Legislature not having determ-
ined the amount of capacity required, tbs
| presumption Of Law is, it was left to thei
| constituents. .
The charter requires the Mayor, Alder.
men and Common Councilman shall own
real estate-the Mayor to the value of $500.
In the answer TO the bill they aver trey
were duly elected, and that they had the
real estate required by Law. The court ia
expressly precluded By the provisions Of
section 1923, of the Code, from inquiring
into the validity of the election, under the
provisions of this chapter, giving the court
jurisdiction, therefore, il is unnecessary,
aud not proper, whether the election was
properly holden or not, for the court 10
consider it. r-
The charter of the body requires free
hold estate In each Alderman and Com
mon Councilman, and when they cease to
be freenOlders, they thereby vacate their
Offices; and if they should not hold over,
not having real estate, they would in the
meaning of the statute, be usurpers, and
the Board would have power TO rem owe
them.
In the case of Thornberg against Alden
snd others, tried in the Chancey Court at
this place, the bill charged that they had
not the real estate required BY the charter.
The bill was dsmurred 10, and the demur-
rers admitting the allegations ofthe bill to
be true, the court held that those having
not the real estate required By the charter,
we're usurpers, but the defendants ia this
writ having answered that they have the
real estate required by the charter, it is
sufficient, upon an application of this char
acter to prevent the action Of the court in
granting the extraordinary process prayed
for by the complaihants-
II is insisted the defendants purchased
tract of land from Hugh McGavock, for
a park, at SAG, 900 that this was fraud
upon the citizens that it Is a marsh that
il is wholly unfit for the purposes for which
it was purchased; that the lands were
bought at prices different from those stated
in the deeds, and the sale is asked TO be
set aside.
1t appears from the answer, the Legisla-
tare granted to the city the right 10 pur-
chase a park, and the petition of fsur
thousand citizens is filed asking the pur
chase of this piece of ground. Whether
this was judicious purchase or not, is not
for this court, at this time, to determine.
The property was bought by the boTrd OF
1867, and but four of the members OF the
present board were in that bolrd.
The corporation of Nashville became
the purchaser. 1t is not before the cour..
nor is Hugh McGavock, who cold the
property. They are both material parties.
No action can be taken upon this point I'M
ill they are made parties to The bill. Any
order made upon them would be nuliIiy
II there was fraud and deIusiOn, as charged
| in the bill, the parties who made the por-
| chase should be made defendants TO thl.
| bill. The members OF the present board
| who were no: parties TO the purchase, arr
not, aud can not, be made individually re-
| sponsible for the acts OF the old board, tha'
were made in fraud or otherwise. 1t Is al
| legsd in the bill that the sureties IN tbs
bond Of the Revenue Collector are insol'
vent, and there is great danger OF loss
| that the citizens are afraid 20 pay then
taxes. and there is no allegation in the bal
that the bond il not in amount sufficient 10
indemnify the city in case OF default O
| the officer.
The answer of the defendants denies the
| allegations of the insolvency OF the securI
lies, and insists that they are good and sum
eient; that they are worth three times tn'
| amount of the bond; the bond u WitnIn
the penalty of $4,000 It appears from
| the ordinances passed by the city govern,
ment. wears ago, the penalty OF the bono
was fixed at that amount. This was a dis
| erection vested 10 the city officers, and th'
| court would not disturb the action Of tn
hoard in fixing the penalty Of a bond, 10
Iess there was an allegation in the bill, ina
the Mayor and Aldermen wilifully and cor
ruptly refused TO raise the amount or pen
| alty of the bond, and there was danger
irreparable loss. .-.-.
T6g taxes are about $3.50, 900 per annum
The collector i. to settle semi-monthiy
npou A proper application. A Court Q
Chaneery might compel them to iDcreas
the penalty bat this il delicate question
and tha court would have TO be satisfies
they willfuIly and corruphy refused to IN
crease the penalty; but no action can o
taken, as the court can make no order uPo'
a person not before the court
So far az this bill discioses, the eoIPorl
ton of Nashville mag, upon suggestion
the proper officers, increase the penalty Q
the bond.
II is ALLEGED in The bill. the defendant
suffered Judgments TO go against the corp
ration. ia which there were large amour
of usurious interest included, and that the
are dealing in checks Of the corporation
and selling them at usurious rates OF II
terest and making large sums by sue
means.
The defendants in their answer adm
that judgments we're rendered, bus nc
for debts contracted by them, and thu
thew had no means, although they s1
pected there was usury, of ascertainlng tn
smount of usury included. The law n
quires that the plea Of uaury shall De NE
uoder oath, and the defendants, it appeal
ing, had no knowledge OF the amount
usary included in the checks upon VIM
the corporation was sued, and upon whlc
. | judgments were rendered in the FEEDER
, | Court. could not be expected to lie u
! plea required by law, aud the court ca
| ace no reason or principle upon wine
f this charge f fraud can be sustained, tfo
| the bill and answer, so al 10 authorize
| court to act by its injunctive poWe
AGAINST the officers for q malfeasanis
! office.
II il denied in the answer that they 80
) any checks, but it is admitted they hyPolh
Gated the checks Of the city 10 raise mon
' 10 pay the judgments that had been re
| dered against the corporation in the Re
; eral Court.
y lam satisfied, from the allegations
: the hill and the admissions Of the snsW'
!, the corporation is largely indebted, q
r judgments have been rendered against