Opinion
Opinion filed June 7, 1952.
1. STATUTES.
In private act concerning county road law, use of 1940 census, rather than 1950 census, as classification was valid and not arbitrary, vicious, or capricious (Priv. Acts 1951, c. 475).
2. STATUTES.
In enacting private acts, the legislature need only use as basis such standard as would clearly indicate county to which act refers and make such provision that other counties within the state may come within its terms (Priv. Acts 1951, c. 475).
3. HIGHWAYS.
Private act, which concerned county road law and changed entire road system, including provision for three commissioners instead of one superintendent, and for County Judge to act as legal adviser of road commission, set up substantial and not merely colorable changes (Priv. Acts 1951, c. 475).
4. OFFICERS.
The legislature cannot abolish a constitutional office or remove a constitutional officer who has been duly elected.
5. CONSTITUTIONAL LAW.
Where office of county road superintendent was not a constitutional office, superintendent had no vested right in the office which would preclude the legislature from abolishing office and creating an entire new system of county road government (Priv. Acts 1951, c. 475).
6. OFFICERS.
One cannot be legislated out of an elected office for the purpose of filling same office with another person.
7. STATUTES.
Where caption of private act concerning road law of a certain county expressed purpose of building and constructing roads and provided for a legal adviser, provision of act giving the County Judge powers to act as legal adviser, for the road commission was not broader than the caption but was naturally connected with the main purpose of the act (Priv. Acts 1951, c. 475).
8. COUNTIES.
Under private act pertaining to county road law, naming of secretary and supervisor in act did not violate constitutional provision that no county office created by a legislature should be filled otherwise than by the people or the county court, since legislature did not intend to create two county offices, but that secretary and supervisor would be employees (Priv. Acts 1951, c. 475; Const. art. 11, sec. 17).
FROM MORGAN.GEO. W. DAGLEY, County Attorney, J.H. McCARTT, S.H. JUSTICE, all of Wartburg, and JOHN JENNINGS, JR., of Knoxville, for complainants.
LADD QUALLS, of Harriman, for defendant.
Proceeding by Gordon Wilson, and others, against Ross H. Williams, Jr., County Judge of Morgan County, to have private act pertaining to county road law declared unconstitutional. The Chancery Court, Morgan County, JOE M. CARDEN, Chancellor, on demurrer, upheld the act, and plaintiff appealed. The Supreme Court, PREWITT, Justice, held that classification in act using 1940 census, rather than 1950 census was valid and not arbitrary, vicious, or capricious.
Decree affirmed.
This is a suit seeking to have Chapter 475, Private Acts of 1951 declared unconstitutional. The Chancellor, on demurrer, upheld the Act as valid in all respects.
The Act in question is assailed for many reasons but only two grounds are stressed.
First, does the use of the 1940 census, rather than the 1950 census, invalidate this Act?
Such classification is not arbitrary, vicious or capricious. Hall v. State, 124 Tenn. 235, 137 S.W. 500.
We think the Legislature need only use as a basis such a standard as would clearly indicate the county to which it refers and make such provision that other counties within the state may come within its terms. We think, therefore, that the use of the population according to the census of 1940 or any subsequent Federal census is a valid classification.
Are the changes provided for in the Act in question colorable or substantial?
A brief comparison of the former road law of Morgan County with the present road law shows that the entire system with respect to roads is changed. In no sense could this Act be denounced as colorable.
By the Act in question, three commissioners were provided for instead of one superintendent. In the present Act, certain powers were given to the County Judge for acting as legal adviser of the Road Commission. Said new Act conferred power on the Commission to name a secretary with a salary of not to exceed $200 per month; also power was given to employ a County Supervisor of Roads at a salary of not to exceed $300 per month and power to employ a County Engineer at a maximum salary of $300 per month.
So then, we think the new Act sets up substantial changes and ones not merely colorable.
It is true that the Legislature cannot abolish a constitutional office or remove a constitutional officer who has been duly elected; however, the office of County Road Superintendent as provided for in the former law is not a constitutional office and has no vested right in the office. In our system one cannot be legislated out of office, where he has been elected by the people, for the purpose of filling the same office with another person. This situation is distinguishable from the present case for the reason that the office itself is abolished and an entire new system of government is substituted.
In Black v. Wilson, 182 Tenn. 623, 188 S.W.2d 609, 612, it is said:
"The applicable rule of law is now well settled. An office holder may not `complain, if, in the public interest, and by way of putting into effect a new system, the Legislature repeals statutes, the effect of which is to abolish offices not protected by the Constitution.' Goetz v. Smith, 152 Tenn. 451 462, 278 S.W. 417, 420, citing House v. Creveling, 147 Tenn. 589, 250 S.W. 357, and other cases. Provided, however, that `the changes in the form or structure of the governmental agency affected must be real and substantial, not colorable only.' Traywick v. Gilkey, supra, citing in addition to those before referred to in this opinion, Smith v. Sells, 156 Tenn. 539, 3 S.W.2d 660; Haggard v. Gallien, 157 Tenn. 269, 8 S.W.2d 364; Loring v. McGinness, 163 Tenn. 543, 44 S.W.2d 314; Powers v. Wiseman, 167 Tenn. 140, 67 S.W.2d 142."
So then, we conclude that under the provisions of the Act now assailed, substantial and not colorable changes were made.
It is also contended that the body of the act is broader than the caption and for this reason the Act must fail. The Act expresses the purpose of building and constructing roads, and other matters such as providing for a legal adviser. The County Judge's relation to the Commission is naturally connected with the main purpose of the Act.
This assignment is overruled.
Does the naming of the Secretary in supervising the Act violate Article XI, Section 17 of the Constitution?
We do not think that it was the intention of the Legislature to create two county offices but that the intent was that the Secretary and Supervisor should be employees.
We have considered all the assignments of error, find them without merit and the decree of the Chancellor is affirmed.