Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-07-24
THE CORPORATION CASE.
Chancellor Easts Opinion.
Taxpayers Victorious.

This bill is filed under chapter s, OF The
Code of Tennessee, entitled "of proceeding
in the name of the State against corpora
tons and 10 prevent the usurpatlon o.
Office"
1t is alleged on behalf Of the defendants
that this chapter has no application to
municipal corporation and the officers,
and to this question the attention of the
court has been called, and the matter ably
presented. The language tf 80 much OF
the chapter as relates TO the argument is
as follows:
"Section 3,409-An action lies, under
the provisions of this chapter, in the name
of the State against the person or corpora
ton, offending in the following cases."
81. Whenever any person unlawfully
holds or exercises any public office or
franchise within this State, or any office
in any corporation created By the laws OF
the State.
q Whenever any officer has done, or suf-
cred to be done, any act which works
forfeiture Of his office.
"3. Whenever any persons act as a cor
| poration within the State, without being
authorized by law.
| az. Or il being Incorporated they do
omit acts which amount TO surrender or
forfeiture of their rights and privileges as
a corporation
"5. Or exercise powers not conferred
by law.
"Or fail 10 exercise power conferred by
| law and essential 20 the corpora exls-
| tence.
"Section 3,4l0-The acclion also lies TO
bring the directors, managers and officers
ofs corporation, or the trustees of funds
given for public or charitable purpose,
TO an account for the management and
disposition Of property entrusted to their
| care, to prevent malversation, population,
or waste; set aside and restrain improper
alienation of such property or funds, and
| TO secure them for the benefit Of those in
terested; and generally 10 compel faithful
| performance of duty.
"Section 3,4ll-The suit is brought by
bill iu equity.
Section 8, 4l2-The suit is br ought by
the Attorney General for the district or
county, when directed to do so by the Gen
eral Assembly, or by the Governor and
Attorney General concurring.
section 3,4l3-It is also brought on the
information of any person, upon such per-
son giving security for the costs of the
proceedings, to be approved by the clerk
of the court in which the bill is filed.
Section 8, 4l4-When the suit is brought
| al the relation of private individual, 1t
shall be so stated in the bill and proceed
ings, Snd such individual is responsible for
cost ia case they are not adjudged again
| the defendant,
"Seclion 3, 1l7-Ths court is authorized
upon the filing of the bill, properly verified
| in all proper cases to grant attachment
| and Injunction, and appoint receivers to
| effect the ends of Justice, and to make all
| such orders rules and DEGREES according to
the practice of a Court of ChanceTy as
may be necessary to accomplish the object
| had in view"
These extracts AZ sufficient to indicate
the object and intent of the Legislature in
its passage, and it is apparent that in all
cases TO which it applies the power TO
| carry out this purpose is complete and am
pie. The only question is whether IT APP
| plies TO municipal corporations and their
| officers. Let us fret determine TO whom
and what it evidently applies, as gathered
from its language.
Sub section /, az quoted sboye, says that
il lies against the person or corporation
offending in the following cases
The words "person OF corporation" in
| clnde every thing and being 10 existence
that is capable of suing or being sued, and
known 10 the Laws assuch. Language could
not be more general or extended, and If
there is not in the subsequent sections Ian
guage limiting or restricting these general
words, then the act must apply, by force of
these expressions, and there could nothing
be left to construction TO which the idea
| Of judicial legislation could notapply. Does
the language Of the sub section 80 restrict
and limit the words Of the first ? Let us
| see.
|. whenever any person unlawtully
holds or exercises any public office or
| franchise within this State, or any office in
any corporation created by the law of this
State" This section applies exclusively
to persons, and to that class of persons
"who unlawfully hold or exercise any pub
lie Office or franchise within this State, or
any office in any corporation created by
the laws of this State" This Language
precludes the idea that it was not meant tc
amply TO public officers. The word pub
lic' in the statute refers to and includes all
officers, whe her political, judicial, execu'
tive or ministerial, whether belonging tC
the State, county, district or municipality
"a distinguished from what is known anC
calIed private officers; that ia, officers o
all kinds belonging to what are known al
pr vate corporations, such as tie officers o
railroads, insurance companies, turnpikes
etc. The Legislature, not content with
giving the action as against public otilcers;
as defined above. go further and make 1t SPPiS
to persons holding or exercising any pu9ll'
office or franchise, within the State or Sny once
| in any corporation created by the laws CT th'
| State" This can not be said to be the Language
| restrictive of that usedi in section 3.4Oy 1t Il
| certainly more definite. and points more clearly
10 the character of the otfense, but Is equally 3:
general and inclusive. rs regSrds the person.
The language of the first Is that the actlOn lie.
.aCainsf the persons or corporations" The
| language of the sub section under cOnSlderatlOl
is 'sany person" who uDiawfully holds or eXer
public oso We OF m Suy US
; cIude that if the allegation of the bll
| h,inCs the defendants within the descrip
| | ton of persons hoIdlng Sr eAeIcisln
| office in any corporation created by the laws o
the State" this court has jurisdiction, and th'
| further question to be tired IS whether suGt
| nerson unIawfully holds any such 6ihce. IL
nnIawflly hold an office, is to assume to be sucl
officer, never having been elected thereto, If IN
| Office be elective, or never having been legally
l
: | bs allied by appointment, or being so appOinteJ
| or elected not having at the time legal qualih
| cations. required by law, and prescribed as pre-
| reouisites 10 the person, as having been full,
aTaIifed when SO elected or appointed. AM
hsving become qualified afteTward and durinl
. | he term. Now / hold so much of the statute
, as have quoted. applies 10 an oihcers. whethe
r | nuhIic or priv ate whether OF the State count.
l | ar municipality, and to this extent disagree
! with so much Of the argument, as asserts tina
| it does not apply 10 omcers OF municipal corpO
/ I -, nrnPppl the sepnnl sl
p "Whenever any public officer has done o
i, suffered to be done any act which works for
[ This section, like the foregoing, apple
to the person holding any public once
The officers of Municipality are al
| public officers, and fall within the description
. of persons to whom the same applies; Now. II
the allegations OF the bill bring the defendant
i within the ofeuse charged in this sect IN, to
q wit: having done. OF suffered 70 pc dohe' an
. | act which works q forfeiture of their Office
! shall hold that this court has jurisdiction.
r Subsection s. When any pen sons act as
\ corporation within this State without benz
| authorized by law" This section. like the tw
preceding, applies to persons. Now, It eoul'
), | hardly be said that persons unauthorized b
-, | law could assume to act as the officers OF mum
ID cipal corporation which had never been chal
n | tered any more than they could of u priyat
q corporation which had no chartered authority
| and may we'll ask, why present the latter an
+. not the former, andi the officers OF the fOrmt
Il | Cuubnc cOrporation) are not to be aud can no
- be restrained by this act and this Jurisdiction
u by what can they be restrained; and why shOul
II this act apply to officers of the State, count
ia and districts and 10 officers OF private corpori
tons, aud not apply to officers Of munielpa
IL ity? why exempt these and leave all othel
of equal and even superior grade exposed
-, the laW2
m Sub section 4-"Or if being incorporated tho
In do or omit acts which amount To surrender
ia forfeiture OF these rights and privileges as
corporation"
is II will he seen that while the three first 81
= sections apply to persons. this section applies
, the corporation. In tue three first sub section
70 as quoted above. the court is called upon to de
C, with the officer IN this 1t IS called upon 70 de