Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-05
the INJUNCTION SUIT.
Closing ofthe Argument.

| Closing of the Argument.
The closing argument in the case of thu
citizens against the Mayor and City Coun
Gil, was made yesterday by Hon. E. Fl
East for defendants, and Hon. A. 8. Colyal
for compliments.
Mr.. East made an elaborate, able ami
most ingenious argument. He spoke Of
the political feeling which naturally and
unavoidaby entered into such suit, and,
indeed, out Of which the lawsuit may be
said to have had its origin. Il was the
offspring of the disappointment and pas
sion of the outs against the "ins." He
contended that the corporation WIS not be-
fore the court, that the property in ques-
ton belonged to the corporation, and hence
no Receiver could be appointed. That if q
Receiver was appointed, the payment Of
taxes would rest wholly 10 the disposition
Of The taxpayer, the Receiver having no
power to issue a distress warrant, and
hence that the whole city government
would at once collapse for want of means.
he also argued that the only way for
suit Of this kind to be brought would be by
the Attorney General, in the name Of the
State; that the city officers were not
trustees for the citizens, but for the State,
and that the State, snd not the citizens,
was the beneficiary under the trust. We
only attempt TO give some Of the leading
points made by Mr.. East, and regret not
being able to present fuller report 10 our
readers.
Col. A. 8. Colysr followed in a speech Of
considerable length He said the bill and
answer both being before the court, must
be examined together. The bill was fled
under section 34O9 of the Code, but for the
purposes of this application section $40
was mainly relied on, though the features
of the bill could be sustained by either'
section. Under the provisions Of this
chapter an action lies to bring the diree.
tors, officers and managers of corporation
10 an account for the disposition and man.
agement of property intrusted to their care,
and TO remove such officers on proof of
misconduct, and to prevent malversatiOn,
peculation and waste, and to set aside and
restrain improper alienation Of funds, and
to secure them for the benefit Of those in
terested, and generally 10 compel faithful
performance of duty.
He took the position that by section
34l7, the court is authorized upon the
filing of the bill properly verified in all.
proper cases to grant attachments and it,
functions, and appoint Receivers to effect
the ends of justice, and to make all such
orders, rules and DEGREES according to the
practice of Court of Chaucery, as may
be necessary to accomplish the object had
in view.
He said that the answer with a flourish
of trunpets, makes much show Of denial.
1t was wordy, sarcastic and political in its
features. He regarded the appointment
of a Receiver TO save the city from
ruin as the great feature of the
bill. II had been contended that we
must have the authority Of the Attor-
nsy General, and that the bill could not be
maintained. He was willing to put the
case upon the ground that no authority
was required. Section 94l3 of the Gods
does not leave roo=1 for doubt. After pro
viding for the call, when the suit is brough
by the Attorney General, and when he in
stitules it the next section is, the suit ma,
also be brought on the relation of an,
private person. Mr.. Colyar then referre'
at some length to the power of the court t
grant relief, and the position assumed b.
the defendants that a municipal corpora
ton has enough sovereignty to be on
Of tie reach of the courts. He sail
that the position taken was strang
doctrine in Tennessee. He then quotes
from the authorities to chow that the Su
preme Court did net agree 10 such 1
opinion.
1t had been earnestly insisted that uPo
general principles the courts could not con
troll or supervise in any respect these mu
nicipal corporations. Mr.. Baxter had sal
that the State can wipe out such corpora
tions and take their property, and that tn
citizens have no interest ia the property
or effects of the city or town which give
them a right to sue; that the officers OF
municipal corporation are DOT trustees; an
we are defantIy asked to point out q singl
instance where the courts have undeI
taken to remove such officers. The fai
ure to find authority for doing it At CON
mon law, would not impair an unequiVo
cal right given by statute. He W.
prepared to show that this statute was nj
departure from well settled principles {
the common law. 0ae of the powers Of
corporation has always been to remove OF
Of its members. He quoted from the bOol
to show that an officer can be removed
the body for something done since b
election or appointment For any defe'
of original qualification the remedy is b
quo paTanto. After quoting literally
sustain his position, he s,id:
These authorities are to the same efec
the Euglish cases, that if the Office Is till'
by a de fdcto officer, he must be removed
quo IDuTTapto before a mandamus can issu
, and they are cases of municipal corpor
tiOns.
Now neither quo ICdrTdnto nor an ln1o
nation in the nature of q quo tCGrrGltO,
in force in Tennessee. They are obsolet
/ and the bill in Chancery has been subst
4 tuted because Of its superior utility in pr
>. venting an injury. See NJ. and \ =, 81
see alsO 2 Humph., 4S2.
Now the pregnant question Is If u
courts in England by msndamus COZ
4 PEELED a corporation to remove May
Of city or town, or to replace him Wh'
be was wrongfully removed, does not II
= establish the Jurisdiction, the power OF Il
9 courts over these bodies and If when
; de tactO Mayor, Alderman or COuncilm'
t was in Office, he had to be removed
9 quo warrduto, before the lawful May
= couII he mt in, and the bill of equity IA