State v. Stine

Mr. Justice Tomlinson

delivered the opinion of the Court.

Due to the illness of its de jure County Judge, J. W. Stine was commissioned temporary County Judge of Bradley County, Section 17-222, T.C.A. The validity of this appointment was challenged by quo warrcmto proceedings instituted by the District Attorney General on relation of named individuals, section 23-2801 et seq., T.C.A. It was therein alleged that certain relevant statutes were unconstitutional. The prayer was that Stine be adjudged a usurper, and enjoined from assuming the office.

Stine’s demurrer to this petition was sustained. Re-lators perfected their appeal, and have assigned errors with supporting brief, notwithstanding the fact that Stine resigned very shortly after the Court sustained his demurrer.

This Court was confronted with a similar appeal in State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607, 608. There, the sheriff’s term of office expired pending ouster proceedings. This Court, in dismissing the appeal, held that “the court cannot retain jurisdiction of an ouster suit where the defendant’s term of office has expired, where nothing can he done upon decree here except to tax costs.” For the same reason, the appeal of the relators in the instant case must be dismissed, Stine having surrendered his claim to the office.

When the trial court announced its action upon the demurrer, Stine moved the Court to (1) make Bradley County a party defendant, (2) adjudge that county liable for the compensation due the attorneys for their services in representing Stine, and (3) fix the amount of that compensation. Stine had employed these attorneys. From the action of the Court in overruling this motion Stine has appealed. The sole question thereby presented is whether Bradley County is liable for these fees.

Bradley County is not liable unless there is a statute which, when strictly construed, imposes liability. This is because “ ‘Counties owe their creation to the statutes, and the statutes confer on them all the powers which they possess, prescribe all the duties they owe, and impress all the liabilities to which they are subject. (Emphasis supplied.) * * * and no doctrine is better, settled in this state than that the power thus conferred must be strictly construed and exactly followed.” Burnett v. Maloney, 97 Tenn. 697, 712-713, 714-715, 37 S.W. 689, 693, 34 L.R.A. 541.

The only statute relied upon by Stine in support of his contention, — and we know of no other which might be relied upon at all,— is the one carried at Section 5-612, T.C.A., providing that:

“The judge or chairman of the county court shall have power:

“ (1) If there be no county attorney, to employ and/ or retain counsel to advise him and the members of the quarterly county court as to their legal rights as such members, to prepare and draft resolutions for passage by the court, and to represent the county either as plaintiff or defendant in such suits as may be brought by or against the county, except suits by the county to collect delinquent taxes, which counsel shall be entitled to a reasonable fee for his services and/or retention to be fixed by a majority vote of the members of the quarterly county court at one of its regular sessions, to be paid out of the county general fund.”

Notwithstanding the sympathy of individual members of this Court for the position asserted by Stine in behalf of these attorneys, the Court can find no way to bring this case within the provisions of this code section. This is not a suit against Bradley County, or against Stine in his official capacity. It is a suit against him individually. It is one which was defended for the sole purpose of protecting what he considered a private right, to wit, the right to hold the office in question. Stine’s assignments of error must, therefore, be overruled.

The decisions which have been cited and discussed in support of Mr. Stine’s insistence are those in which the County was sued or an official of the county in his official capacity or in which there was a disagreement between different officials as to their respective jurisdictions, powers and duties with reference to a particular matter or statute. Those decisions in the opinion of this Court are not in point.

We have decided the question presented by Mr. Stine’s appeal notwithstanding the fact that the record (1) discloses that Bradley County has a county attorney, and (2) does not disclose that Stine or these attorneys have presented their claim to' the Quarterly Court of Bradley County all as provided by the statute hereinbefore quoted.

To avoid the possibility of misconstruction in the future of our action within the premises, we think that an explanation should be made.

The county attorney and the quarterly court were both opposed to the position taken by Stine in this case. So, it was insisted by him that it would.be useless to first appeal to the Quarterly Court. While we do not subscribe to the proposition that the Court-would necessarily reject payment of these fees, if it considered the same to be a liability of the county, merely because the members of the Court disagreed with Stine’s position, nevertheless, we have deemed it to be not inconsistent with proper procedure under the circumstances stated to decide the question presented by Stine’s appeal.

The appeal of relators will be dismissed and one-half the costs of appeal shall be adjudged against them and their sureties. The judgment of the Circuit Court overruling the motion of Stine to adjudge Bradley County liable for the fees of the attorneys representing him in this cause will be affirmed. One-half of the costs of the appeal will be adjudged against him and his sureties.