Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-07-24

| II tne Ilfht 10 municipal once cannot b.
contested by the State under the chapter of thu
Code. it cannot be contested in the courts at all
| The only process known to the law, by which
the right of an officer to his Office. could be con
| tested or questioned. was by the process of Qut
todrrdnto. Aug. Ames. 600. Blackstone on
Bacon, Mandamus. A mardamus will not do
no officer was ever ousted by this writ at como
mon law. The custer took place under the quo
UdrrGnto. The madamus put in the proper and
legal officers. after the proceedings under :ht
quo lodTTdntO ended-see Bacon. madamus Our
Supreme Court in the case of Attorney Genera
vs. Leaf q. Huson 753, State vs.. Turk Mar and
Yer 2S7. State vs.. Merchants Insurance and
Trust Company s Hum rs. and Bradley VS.
Commissioners Hum AS. say that the quo icdr-
fdht0 IS no longer In use, and IN the latter case
toe court say that Court OF Chancery Will pre-
vent, BY injunction, what couldbe effected by
!his writ. and that the qtio Icdrrdhto had fallen
into disuse,
If the chapter in the Code does not apply to
AL municipal offices. and give the right TO try
law In the State by which it can be dOne-and
All municipal officers. in all that pertains to
tnelr once. must pass unquestiOned. We cannot
nold such to be the law. 70 say that the LegiS-
lature has full powers over municipal corpora
tons and can correct all abusSs. is not sufficient.
so has the Legislature full power over all Stale
and county officers. and may repeal these Off
ces, and call 10 the franchise; yet With this gen
eral power We see the Legislature has deemed
1t wise and prudent to lodge with the Judiciary.
full power over all these-and why not, over
be exempted? What appertains to these eflicer,
that can render them. above these salutary re-
strictiOns? Sufficiently salutary. to be put 10
force against the highest and lowest State OIL
clal or officer of private corporations; but can
not and must not be applied 10 the officers OF
municipal government. L there not greater
reason for holding that these restrictions apply
to the officers of municipal corporation thaa
to any office of the ietate?-we think So The
officers OF a municipal corporation are br0ug ut
in contact with, and affect in their action. and
bring within their Jurisdiction larger amouRt
of property, with duties to discharge towards
the same. than any other body of men. except
the Legislature, (the members OF which do not
fall under the designation of Oticers). and the
property too is not the State. but towards which
these officers occupy the relation OF trustees
Let us see what relation either the State. cor
pOratiOn or the officers of the latter occupy to-
wards the property of q municipal corporation
First. how does the State stand toward II
The municipalities of State are agencies oil
the State, created and endowed by the State
with corporate existences, and being nero
agencies of the State, corporation cannot be
said to have that complete and absolute control
and disposition of its property Whlch an lndt-
vidual has. Moreover, the Chartered rights
and powers may be, at any time, taken away
by the Legislature. in which case the LegIsla-
ture has deprived the corporation OF Its prop
erty, by defeating its existence and capacity
to hold it. The fact that a corporation pos
sesses property. cannot impair the right of the
State to alter. modify, or repeal its charter; nor
preme, that the Legislature can take its prop
erIy, and change its uses. 1t cannot coniscate
to its own use the private funds OF eorpora-
ton, acquired under the public faith. and
against the will Of the donors and donees.
Justice Washington. in the case of Woodward
VS.. Dartmouth College, Wheat COS, says
The government has no power to revoke
grant even of its own funds, when given to
private person or corporation for special uses:
1t cannot recall its own endowments, granted
TO any hospital or college or city or town. The
only authority remaining to the government Is
jud icial." A.
Supreme Court of the United States, which
exist only for pRblic purposes, such as towns,
cities, ETC., the Legislature may, under proper
restrictions, change. modify, enlarge or restrain
them; securing. however, the property FOR the
use Of those for whom and at whose expense u
was purchased" See Taylor vs.. Terrett =,
Cranch 43, Town of Paulet VS.. Clark. lhdu. ~,
Cooley, in his recent work on Constitutional
Limitation page z38, after a full review OF all
the authorities says: The rule upon this sub
ject seems to be this: When corporate powers
are conferred there Is an implied compact pc
tween the State and the corporation, that the
property which they have the capacity to ac-
quire under their charter, shall not be taken
from them and appropriated to other uses,
citing Il Ill. 80; Is Mass. IT, z Yer. IA; ~ Yer.
Is; 10 Barb. 22S; Is B. Mon. 642; "a Mo. 527: So
we may conclude from authority that neither
the corporation itself or the State have full
control or absolute disposition OF the property
not, do the officers Of the latter have it2 Can
any right which they may have receive higher
designation than that of trustee, with a d!s-
erection and. like any other trustees with dls-
erection, may they not be called upon TO &C,
count for peculatiOn. waste. malversatOn, etc!
for these begin after discsstion ends: We think
So 1t is said however. that this bill Is not hled
with the assent of the State, or Its Attorney
General Ii the assent of the State was neces-
sary to the form Of the bill, il should have been
demurred to. The answer implies jurisdiction
and merits, and relief to the full extent that
either this court or a court OF law could give
besides the statute gives any citizen the rleht TO
file it. in the name of the State, and II the elti-
zen filing it should die. the suit abates, Wnlch
HouId not be the case If the suit was Tor and 10
behalf of the State. Before proceeding 10 the
allegations of the bill and answer. L desire to
advert to another fact. The injunction and Re
ceiyer were granted and appointed by Hon,
Charles u. Smith, upon the pleadIngs as they
now stand and upon argument. and without
change of pleadings or proof, this motion TO
dissolve the Injunction and DISMISS the re
ceiver is now made TO me; which facts give 10
the proceedings the aspect eff taking chances or
guessing between two ChaneellOrs- L disagree
with the argument which insists that thus court
has not the jurisdiction TO entertain both mo,
tons. at this time. upon proper pIeadlngs, anu
decree either way If this court had granted n c
Injunction and appointed the receiver originally
it could now modify, change or alter the lnteTiO'
cutOry order upon proper case ana 10 us
solve the Injunction, would be, in effect TO DIS
miss the receiver, for it would be useless to
retain the receiver. and withdraw the lnlune-
ton. Having in the foregoing part of the
opinion held. that the chapter OF the Code
applies as follows:
i. To any person who unlawfully holds or
exercises any public Office or franchise within
the State. or any office in any corporation ere
ated by tAe laws of the State. and that the de-
PENDANTS, are as such persons, subject 10 the law
if the facts bring them within IT, and also that
subsection applies to them If they or either
of them have or has done or suffered 10 De
L.. NTwfa NFrnrn n
office" and that they are also included in see
tion 40 as set out above, il remains to con-
slider of the bill and answer. Before doing inns
however, there is another point to settle 1t Is
insisted 1pOn the one side, that the answer sub
stantially meets and denies every material ale
CATION of the BILL which it IS admitted must be
done before either motion can be granted
upon the other side it is insisted that the 81.
ITer Is NOT full but is evaSiye and is not Of taat
character which warrants granting the n'oti on
to dissolve the injunction. An lnJEnetlOh
properly granted cannot be dissolved OF answer,
If the answer admits or evades the e0aity u Tue
bill. / Tenn. 242. If an injunction mas peen
obtained upon bill alleging want OF TUE In
the defendant. it will not be RlssoiVeq uhIess
the defendant in his answer SHOW toat ne nag y
good title, by setting forth the munlmentS OF
which it consists. Murdoch vs.. Williams, 1enn'
325. Where a bill charges fraud. and an IN
junction issues. and the answer aOes NOT uehy
the fraud fully and positively. although the de-
NAL be as full as can be given by the party
under the circumstances, the Injunction Will
not be dissolved. RObertsvs. Anderson, J0nn,
CHI. 204. And though the equity OF the olii u :
denied, the court will not of course dissolve the
Injunction, as the granting ana eontlhuihg
thereof rest8 in the sound discretion OF the
court. TO be governed by the nature OF the case.
Ibid 2O4 If the answer merely states the de-
fendant's Ignorance of the principal allega-
tions of the bill, but that ne believes them TO
be untrue, it will not do. HOPKINS l4U,
If the mischief complained OF IN the plll be
| irreparable. the injunction Will be IN the dis
arafian of the eOuFt- 3 sumner ~.
The answer must deny positively the material
facts of the bill and the denial must be ground
ed on personal knowledge, not IN information
| and belief, in order to support dissolution
| 3 sumner, 70. These cases, and many 9th ers
| which might be cited. show what must be the
1 character of the answer in order to accomplish
| a dissolution. have not been able to ind any
| case in which a receiver has been discharged
| upen answer. Edwards on receivers IN Equity
page 62S lays it down " that the receiver can oRh
be discharged on petition; the court Will not Dc
IL on further directions, and IL must be specia
| application" Citing Gilbert vs.W nitmarh anC
| Mad Chm. page z93, Sd edition. This leads u
i to consider of the Bill and answer. The Bill Il
filed in the name OF the State, IN the related
/ Of 446 citizens III behalf of themselves Ano
i others against the Mayor and City CouRcd, the
/ City treasurer, Revenue Collector, and others
| anu charges
| l. That the Revenue Collector Is required Il
give a bond of only $4,000. and chat neither tn
| principal or his sureties are worth near tina
/ sum, and that the amount OF the pond IS no
equal to the collections of a single month. anC
IN AZ the city is liable to lose largely thereby.
2 That the bond OF the City Treasurer is il
| the final sum of S30,OU0, when his rec eipts fO
| the last 4 month";, amounted to S8l9, 009.53, anC
the surcties 90 the bond are wholly insufficient
| q. That the acceptance of these bonds by tn,
| Mayor and City Council, was q fraud and
violation Of their duties. and known to b.
| such.
4 That the receipts Of the Water Tax COllecto
are $50, OOOannually, aud for this he has given
bond for $500
5. That there are judgments against tn
| Corporation amounting to S275,0 900, that Thu
| sum is being increased daily.
8. That the Mayor and Finance Commits
have recently issued checks for safe TO tn
amount of S75S. OOJ, and that the checks ar
issued and sold without authority Of law
and if not sold they are hypOthecated 10
money borrowed, that they are not issue
| upon any audited claim, but for the purpol'
| Oh borrowing money, and many of then
| i.n,,ah 10 fctitinns nsrsnns: that S2.S.O Of