State ex rel. Shelby County v. Stewart

Mr. Justice McKinney

delivered the opinion of the Court.

The determinative question in these cases is the constitutionality of chapter 77 of the Private Acts of 1917.

Said act deprives the county officials of Shelby county of all fees and places them on salaries ranging from $4,000 to $6,500 each per annum; provides various deputies for the several offices and fixes their salaries; provides that all fees collected by such officials shall be paid into the county treasury; requires said officials to keep books containing a minute description of each fee collected; requires them to file a verified detailed statement of fees so collected, each month, with the chairman of the county court, who issues to them warrants, drawn on the county treasury, for their salaries, expenses, etc. Finally the act makes it a felony for any official to fail to comply with the terms and conditions thereof.

It is insisted by the defendant officials that the act is unconstitutional because it violates article 1, section 8, and article 11, section 8, of our State Constitution, in that it suspends a general law for the benefit of Shelby county, and because it deprives the county officials of Shelby county of the fees collected by them, but does not deprive like *378 officials in the other counties of the State of their fees. In other words, that the act is unreasonable, arbitrary, partial, and is vicious class legislation.

For many years the fee system has prevailed in this State. The legislature fixed a uniform scale of fees to be collected by the various county officials so that the charge for recording a deed in Shelby county is the same in every other county of the State. The same is true as to the fees of sheriffs and all other county officials.

A number of efforts have been made to abolish this fee system upon the theory that in some of the larger counties officers were overcompensated. With this end in view, the legislature passed several anti-fee bills, all of which, however, were defectively drawn, and, consequently, held unconstitutional by this court.

The officials of Shelby county render the same service, perform the same duties, and receive therefor the same fees as do like officials of Davidson county, and yet such officials of Davidson county are permitted to retain all fees collected, while, in effect, the officials of Shelby county are only permitted to retain a part of such fees. Furthermore, the officials of Shelby county are compelled to beep a detailed set of books and file verified reports each month, and are subject to fine and imprisonment for failure to do so, while no such burdens are imposed upon county officials in the other ninety-five counties of the State.

Following the spirit of our Constitution of justice and equality, and adhering to former adjudications of this court, we feel constrained to hold the act in question invalid as being arbitrary and partial. The following cases are in point: Mayor v. Dearmon, 2 Sneed, 104 ; Weaver v. Davidson County, 104 Tenn., 315 , 59 S. W., 1105 ; The Re *379 districting Cases, 111 Tenn., 234 , 80 S. W., 750 ; State v. Kerby, 136 Tenn., 386 , 189 S. W., 859 .

We are further of the opinion that the act is unconstitutional because it suspends a general law for the benefit of Shelby county.

Under the general law of this state, the fees collected*» by all county officials belong to them and no portion thereof belong to the respectiye counties. Under the act in question the legislature undertook to suspend this general law so as to give to Shelby county a portion of such fees, but did not extend the right to any of the other counties of the State. No good reason has been suggested to us which would justify such a discrimination.

We do riot wish to be understood as holding that the legislature cannot classify the counties of the State, upon a population basis, as Avas done by the Estes Fee Bill, Avhich was held unconstitutional by this court in Weaver v. Davidson County, supra, but upon other grounds. That question is not before us.

We are further of the opinion that the act is not a police poAver statute, nor an act regulating county matters as a governmental or political entity.

In Motlow v. State, 125 Tenn., 547 , 145 S. W., 177 , L. R. A., 1916F, 177, “police poAver” is thus defined: “The police power is a necessary one, inhering in every sovereignty, for the preservation of the public safety, the jmblic health, and the public morals.”

The act in question does not pertain to, nor in any manner affect, the public safety, the public health, or the public morals, but it is a revenue act passed solely in the interest of Shelby county.

*380 The fact that the act applies to counties having a population of more than 190,000 by the federal census of 1910, or any subsequent federal census, does not alter the case where the act does not affect the county in its political or governmental capacity. State v. Turnpike Co., 133 Tenn., 446 , 181 S. W., 682 ; Redistricting Gases, supra.

In State v. Kerby, supra, it was said: “While the defendant has no vested right in this office of the justice of the peace, it is well settled that an office is a species of property in which he has property rights.”

In the cases under consideration, the defendants had property rights in their respective offices which was not the case in Smiddy v. Memphis, 140 Tenn., 97 , 203 S. W., 512 , a case relied upon by the complainant. A fireman is not an officer but a mere employee of the city.

We therefore hold that the Chancellors were correct in holding the act to be unconstitutional, and their action in dismissing the bills of the complainant is affirmed.