Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-07-06

1857, null and void for want OK legal au-
thority. The Legislature exceeded its
authority in abolishing the quarterly
County Courts, and substituting in their
place Boards of County Commissioners,
and therefore those who assumed to act
as such Commissioners were usurpers.
They had no legal right to draw warrants
upon treasures of the counties they as
sumed to represent, nor TO draw money
from such treasures to pay their own
salaries. Where they have done 80, they
are clearly responsible to the counties for
the money thus drawn. "Rights cannot
be built up under the contracts which
depend upon" an unconstitutional act,
"for their consideration is void" There
was no consideration for the money the Sc
usurpers drew as salaries, and If they an
worth any thing they can be made
to refund. The warrants drawn
| by the Presidents of County
Commissioners on the County Treasures
or Trustees having been declared null and
void, by the Supreme Court, are not the
parties who drew the money upon these
illegal warrants responsible to the coun-
ties for the ssme9 The following is the
opinion of the Supreme Court as publish
ed by the Memphis appeal:
Shelby County vs. Benz. Bsetera0orth.
1t is provided by the Code, Art. 8, p.
14S, that the Judge or Chairman of the
County Court shall preside over the
court, and be accounting officer and gen.
eral agent of the county, to audit all
claims for money against the county, and
to draw and seal, with the seal of the
County Court all warrants upon the
County Treasury; and no money shall be
drawn out of the Treasury of the county,
except upon the warrant of the Judge or
Chairman of the County Court.
By the provisions of the Code, page
755, majority of all the Magistrates of
the county IL required to levy tax, OF to
appropriate public money to an amount
over fifty dollars, and at the first term
each year, the County Courts arerequired
to impose and provide for the collection.
of tsxes for County purposes, and fix the
rate thereof; and iE making appropria-
tons of money the vote of the Justices
present shall be taken by ayes and noes
and be recorded.
These provisions of the Code were in
force until the passage of the act of 1867,
Oh. 46, sec. 81, p. 20. By this act Board
of Commissioners for Shelby county, con-
sisting of five persons, was established. To
this Board of Commissioners were transfer
red all the powers and duties previously
vested in and performed by the Quarterly
Court. After comforting various specific
powers on the Board, it is enacted, that
no money shall be drown from the Treas
ury, except upon warrant signed by the
President of the Board, and countersigned
by the County Clerk. The Magistrates of
Snelby county were relieved from all
further duties and obligations incident to
their offices SIS members of the Quarterly
Court. Full powers were vested in the
Board of Commissioners TO levy and col
lect taxes and appropriate the same to
county purposes.
Under this act, Board of Commits
sioners was appointed, of which Barbour
Lewis was President, and j. B. Wood>
ward was appointed County Attorney.
In the execution OF his Office as President
of the Board, Barbour Lewis issued
number of warrants on the county Treas
ury for the payment of county dues,
which were transferred and assigned by
the several holders thereof to Benz. But
terworth, who commenced his suit there
on in the Municipal Court of Memphis,
at the August term, 1869.
The summons ordered the Marshal of
the Municipal Court 10 notify the county
of Shelby to appear and answer BENZ.
Butlerworth to his damages, 81, 900. The
summons was returned by the Marshal
Endorsed, executed on Barbour Lewis,
Chairman Board County Commissioners
for Shelby county, and on j. B. Wood
ward, County Attorney, July 27, 1852"
The declaration sets out in detail the
several warrants sued on, giving the num-
berE, dates, TO whom payable, their
amounts and for what issued,
and all signed by Barbour Lewis, Presi-
dent of the Board of Commiss oners Of
Shelby county, and countersigned by Jno.
League, County Clerk.
On the 9th day of August, 1859, judg-
ment by default was taken against the
county of Shelby, for 81, 297.51, no ap-
pearance having been made by the county.
The county of Shelby brings the case
here by writ of error.
In two cases decided by this court-one
that of White VS.. Commissioners of White |
county, decided at Nashville, and the |
other that of Walker vs. Merriman, de- |
cided at the present term, we have determ- |
ined that the Legislature exceedsits consti- |
tational powers in assuming to abolish |
the County Court, and substitute in its
Mace a Board of Commissioners, with the
powers belonging before to the County
Court. The act of March 9, 1867, was
therefore a nullity, and the Board OF
Commissioners appointed aad organized
Hereunder was an unauthorized and lie
gal body. The act was imperative as to
the existing organization, powers and du-
ties of the County Court neither the Board
of Commissioners, nor Barbour Lewis,
its President, had any more powers under
said act than if no act had been passed.
In the language of Judge Corby, page
18S of his work on constitutional imita-
tionq, ''when statute is sdjudged to be
unconstitutional, it is SIS if it had never
been. Rights can not be built up under
the contracts which depend upon 1t, for
their consideration is void. Il consti utes
8 protection to no one who has acted
under it, and no one can be punished
for having refused obedience TO it
before the decision was made.
The declaration sets out the several
warrants, showing upon their faces that
they were issued by Barbour Lewis as
President of the Board of Commissioners
of Shelby county. We know judicially
that the County Court, through its Judge,
was the only legal authority by which
such warrant could be issued.
The claims ON which plaintiff founded
his right to sue were therefore illegal and
void, ana being illegal and void in their
inception, they were as invalid and uu-
available in the hands of the plaintiff as
in the hands of the original holders. The
county of Shelby was not bound to pay
the same, either to the first holders or