Tennessee v. Condon, 189 U.S. 64 (1903)

TENNESSEE v. CONDON.

No. 209. Argued March 12,13,1903.—Decided April 6,1903. It is the duty of this court to decide actual controversies by a judgmen which can be carried into effect, and not to give opinions upon moo^ questions or abstract propositions, or to declare principles or ru es

law which cannot affect the matter in issue in the case before it. When, pending an appeal, it becomes, without any fault on the par o defendant, impossible for this court to grant any effectual re ie Q plaintiff in error even if it should decide the case in his favor, e a will be dismissed, JfiWs v, Green, 159 U. S. 651, followed.

189 U. S. Statement of the Case.

This was a bill filed in the Chancery Court of Knox County, Tennessee, under the statute in that behalf, in the name of the State, “ on the information of ” T. A. Rambo and G. L. Maloney, G. H. Strong, S. L. England, Sam Vance, J. F. C. Harrell and R. L. Peters against Stephen P. Condon, T. T. McMillan and James Rich, and H. C. Anderson, representing “ that at the January term, 1898, G. H. Strong and T. A. Rambo were duly and legally elected by the County Court of Knox County, Tennessee, members of the pike commission of Knox County for the term of four years, which would make their terms of office expire in January, 1902, and G. L. Maloney, who is the judge of Knox County, Tennessee, is by operation of the law ex officio chairman of said commission. The said Sam Vance and J. F. C. Harrell were duly elected members of the said workhouse commission by the said County Court of Knox County, Tennessee, at its January term, 1901, which would make their terms of office expire in 1903. The said S. L. England and I.

• ite were duly elected workhouse commissioners of Knox oun y Tennessee, at its January term, 1900, which would make then- terms of office expire in 1902, and the said G. L.

counpy i® ex officio chairman of the said

of th1SS10n* be said R. L. Peters was elected superintendent teZfTm January, 1898> which would make his dulv m January’1902- of said officers were ficLnd legaUy/leKcted and inducted into their respective ofqScaZTj. and Up to the time of tho to W^m th/u t0 Wit’ °n March 2’1901’ ^tinned emolument« exercise the ^notions and receive the

Th^T pertaming to ^id offices.”

General A st^hiVer?<Jithat’ °n Februar^ 1901> an act of the the governor Z ° State of Tennessee was approved by a board of pubh^rZd “ An to create and working of nnhr COmjnissloners’to regulate the laying out population of not 1^° th State’ counties having a under the Federal than Y0>000 and not more than 90,000,

That in pursuance of the act, the governor of Tennessee, on February 16, 1901, appointed Stephen P. Condon, James Rich and T. T. McMillan as the board of public road commissioners ; that Condon was appointed superintendent of public roads, and the other two associate members of the road commission ; that the governor had issued to defendants commissions as such public road commissioners ; and that they gave bond and qualified March 2, 1901, “ and are now attempting to perform the duties of the said offices.”

That defendants had in fact ousted the pike commissioners, the workhouse commissioners and superintendent from their respective positions, and deprived them of their privileges and powers ; and that H. C. Anderson had been elected by defendants manager of the workhouse.

Complainants further represented that the act of February 8, 1901, was in plain violation of the constitution of the State of Tennessee; illegal, null and void ; and “ not effective to deprive the said parties of the several offices aforesaid, to which they were regularly elected, or of the rights, powers, privileges and emoluments thereof,” and that defendants “ are unlawfully holding and exercising said offices of public road commissioners and superintendent of roads and associate members, and that they are usurpers of said offices.”

The prayer was (1) for process ; (2) “ that the said defendants may be enjoined from holding the said offices of public road commissioners or superintendent of public roads or associate members of said road commission, or manager of the workhouse, or from exercising any of the powers and rights which the said act of February 8, 1901, attempts to confer upon them, and that they may be enjoined from receiving any of the emoluments appertaining to the said offices under and by virtue of the said unconstitutional and void act, and that upon final hearing said injunction may be made perpetual;

On March 21, 1901, an application for injunction was denied, and on March 23d the bill was amended by striking out the third clause of the prayer. Defendants filed a demurrer March 29, 1901, which, on the next day, was sustained and the bill dismissed. The case was then carried to the Court of Chancery Appeals, and it was there contended, on errors assigned, that the act of February 8, 1901, was invalid because in violation of the Fourteenth Amendment to the Constitution of the United States as well as of the state constitution. The Court of Chancery Appeals affirmed the judgment of the chancellor, August 29, 1901, and an appeal was prosecuted to the Supreme Court of the State, where it was again alleged in the assignment of errors that the act in question was in violation of the state constitution and of the Fourteenth Amendment. The Supreme Court held, on November 15, 1901, that the statute was not in violation of either, and affirmed the decrees of the chancellor and of the Court of Chancery Appeals. 108 Tennessee, 82. Thereupon a writ of error was sued out from this court, and the record was filed and the cause docketed December 10,1901. No motion was made to advance the case, and it came on for argument and was argued March 12 and 13,1903.

Mr. G. W. Pickle for plaintiffs in error. Mr. J. W. Green was with him on the brief.

Jfr. Joshua W. Caldwell for defendants in error. Mr. wrles T. Cates, Jr., was with him on the brief.

Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court.

Opinion of the Court. js 9 U. 8

This was a proceeding under provisions of the Code of Tennessee authorizing a bill in equity to be filed “ whenever any person unlawfully holds or exercises any public office or franchise within this State.” Shannon’s Tenn. Code, (1896) § 5165, cl. 1 ; § 5167.

By sections 5168 and 5169 it is provided that the suit may be brought “ by the attorney general for the district or county, when directed so to do by the General Assembly, or by the governor and attorney general of the State concurring;” or “ on the information of any person, upon such person giving security for the costs; ” when the attorney general for the district or county may institute the proceeding without direction. State v. Campbell, 8 Lea, 74, 75.

Such was this suit, which was not brought by direction of the General Assembly, or of the governor and attorney general of the State; but was instituted at the instance of persons superseded in public office by an act of the General Assembly (approved by the governor and carried into effect by him) which they charged was unconstitutional. Acts 1901, c. 8.

The question of constitutionality had been raised in an application for mandatory injunction to compel the county judge to approve the bonds of the persons appointed commissioners under the act, the writ had been awarded and obeyed, and the decree was affirmed and the act sustained by the Supreme Court at the same time that the decree in this case, subsequently brought, was affirmed. Condon n. Maloney, 108 Tennessee, 75, 82. But the Supreme Court also ruled in the prior case that as the writ had been obeyed, it had spent its force, so that even if they differed with the chancellor as to the use of the particular process, an objection therein urged, a reversal of his decree “ could not undo what had been done,” and to enter it, “ woul be an idle ceremony.” .

In the circumstances this case assumed the aspect of a ci contest between individuals, and not of a prerogative writ to correct usurpation of office.

Sections 5175, 5176, 5177 and 5180 are as follows:

name of the person rightfully entitled to the office, with a statement of his right thereto, may be added, and the trial should, if practicable, determine the right of the contesting parties.

« 5176. If judgment is rendered in favor of such claimant, the court may order the defendant to deliver to him, upon his qualifying as required by law, all books and papers belonging to the office in his (defendant’s) custody, or under his control, and such claimant may thereupon proceed to exercise the functions of the office.

“5177. Such claimant, in this event, may also, at any time within one year thereafter, bring suit against the defendant, and recover the damages he has sustained by reason of the act of the defendant.”

“5180. When a defendant, whether a natural person or a corporation, is adjudged guilty of usurping, unlawfully holding, or exercising any office or franchise, judgment shall be rendered that such defendant be excluded from the office or franchise, and that he pay the costs.”

In State ex rd. Curry v. Wright, 5 Heiskell, 612, it was held that the bond given in case of appeal in an action for usurpation of office need be only for costs, and the court, after referring to sections 5176, 5177 and 5180, (by the prior numbers,) said:

“ These provisions are specific and clear that the matter in contest to be decided is the usurpation of the office or franchise; and the judgment, exclusion from that office or franchise; and the money judgment to be given is for costs, and the damages, rf any have accrued, are provided for in another suit to be brought within a year after the judgment.

“ The provision, ‘ that the suit will be conducted as other suits in equity,’ only means that it shall be conducted as such a suit, to the attainment of the results above indicated, but cannot be eld to include an inquiry into the damages sustained.”

The present case was argued March 12 and 13, and it appears on the face of the bill that the terms of office of all the reators, except the county judge, expired before that day.

As to the defendants the bill shows that defendant Anderson was merely a subordinate appointee of his co-defendants, and that they had been appointed by the governor commissioners under the act of February 8, 1901. That act provided for the appointment of three commissioners, to “ hold their offices until the next general election of county officers, when their successors shall be elected by the people, and every two (2) years thereafter said offices shall be filled by popular election.” The next general election of county officers referred to was held, according to section 1154 of the Code, in August, 1902, so that these commissioners were appointed to serve until that date, and their temporary commissions then terminated.

We cannot assume that relators, who were originally elected by the county court, would hold over, and manifestly the provisional title of defendants has determined. It follows that the relief as prayed cannot now be granted.

There are cases in quo warranto in which judgment of ouster has been entered although the term of the person lawfully entitled had expired, and also where informations have been retained, when the statute provided for fine or damages, but here the proceeding cannot now be maintained as on behalf of the public, and considered, as counsel insists it should be, as merely a contest between two sets of officials and not between the State and its officials, the state courts would be at libeity to treat it as abated, and the mere matter of costs cann^ availed of to sustain jurisdiction. See Boring v. Grijjit, 1 HeiskeH, 456, 461 ; State v. McConnell, 3 Lea, 332; »■ son County v. Perkins, 39 S. W. Rep. 347; State v. Lin sey, 103 Tennessee, 625, 635. . .

Doubtless the question of the validity of the act of 190 is o importance, but it has been upheld by the highest ju icia tribunal of the State of Tennessee as consistent with t e s a constitution, and it affects only the citizens of that State.

test, we should do nothing more than reverse the decree below and remand the cause, and as such a judgment would be ineffectual, we must decline to intimate any opinion on the subject.

“ The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” Mr. Justice Gray, Kills v. Green, 159 U. S. 651, 653.

We think this writ of error comes within the rule thus declared, and it is therefore

UNION AND PLANTERS’ BANK u MEMPHIS.

SAME v. SAME.

RCUI1 AND FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.

CircuhTonT °f CltlzenshiP does not exist and the jurisdiction of the under the c lest» sole!y on the ground that the cause of action arose court XTt rftheUDited States’ anaPPeal lies directly to this shouldT L 7. 5 °f the Judiciai’y Act of 1891, and if an appeal decree Xi™t * t0 CirCUit Court of APPea’s and there go to of want of inU1-.JV1,lreverse decree, noton the merits, but by reason Judiciary Act 008917* 7 ^7 C°Urt‘ ** ** nOt the intention of the

1891 to allow two appeals in cases of that description.

Statement of the Case. 189 U.S.

The doctrine of res judicata under the decisions of the highest court of Tennessee is not applicable to taxes for years other than those under consideration in the particular case. The effect of a prior judgment of a state court as res judicata is a question of state, and not of Federal, law.

Where a former judgment pleaded has no force or effect in the state courts of Tennessee as exempting a corporation from certain taxes other than as a bar to the identical taxes litigated in that suit, the courts of the United States can accord it no greater efficacy.

The Union and Planters’ Bank of Memphis was incorporated under a charter granted by the General Assembly of the State of Tennessee in 1858, which contained the following provision: “ That said company shall pay an annual tax of one half of one per cent on each share of stock subscribed, which shall be in lieu of all other taxes.” The corporation was located in the city of Memphis, Shelby County, Tennessee, and that city, pursuant to an act of the legislature of Tennessee, assessed an ad valorem tax for the year 1899, for municipal purposes, on the capital stock of the bank. The bank, thereupon, filed its bill in the Circuit Court of the United States for the Western Division of the Western District of Tennessee, in which it was alleged that the law under which the assessment was made impaired the obligation of the contract created by the above-quoted clause of the charter. The bill further averred that in a former litigation between the bank and the city, wherein it was sought to enforce a municipal assessment of taxes on the capital stock of the bank for the years 1888, 1889 and 1890, it was adjudged by the Supreme Court of Tennessee that by the provision aforesaid the capital stock of the corporation was exempt from all general taxation. The record and judgment m that suit were set out in full, and pleaded as a final judicial e termination of the bank’s exemption from the payment of valorem taxes on its capital stock; and it was averred that t e judgment so pleaded was based on the identical claim of exemption now asserted, and on identically the same facts and con tions under which this assessment was made.

The prayer was that the assessment be cancelled an com plainant be declared to be exempt from the payment to t e ci y of ad valorem taxes on its capital stock.

Defendants demurred, and the demurrer was sustained and the bill dismissed, November 6, 1900, whereupon complainant prayed and perfected an appeal to, and also took a writ of error from, the United States Circuit Court of Appeals for the Sixth Circuit, and the case was docketed there on or about November 27,1900.

On February 11, 1901, complainant prayed and was granted an appeal from the decree of the Circuit Court directly to this court, the record was filed here, March 23, 1901, and the case is now No. 67.

The case in the Circuit Court of Appeals was heard June 10, 1901, and the decree below was affirmed October 21, 1901. Ill Fed. Rep. 561. Thereupon complainant, appellant in that court, prosecuted an appeal from its decree to this court, and the case was docketed here January 13, 1902, and is now No. 221.

Both cases were submitted, as one case, on printed briefs.

Jir. William, H. Carroll and Mr. Tim, E. Cooper for appellant.

Jfr. Lake E. Wright and Mr. John H. Watkins for appellees.

Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court.

Diversity of citizenship did not exist, and the jurisdiction of t e Circuit Court rested solely on the ground that the cause of action arose under the Constitution of the United States. The appeal lay directly to this court under section five of the u iciary Act of March 3, 1891, and not to the Circuit Court o ppeals. American Sugar Refining Company v. New r (ms, 181 u. S. 277. Nevertheless an appeal having been prosecuted to the latter court and having there gone to decree, an appeal was allowed to this court because the judgment was o ma e final in that court by section six of the act. But the eing here, and the jurisdiction of the Circuit Court having

Opinion of the Court.

189 U.S.

depended on the sole ground that it arose under the Constitution, we are constrained to reverse the decree of the Circuit Court of Appeals, not on the merits, but by reason of the want of jurisdiction in that court. If this were not so, the right to two appeals would exist in every similar case notwithstanding, as we have repeatedly held, that such was not the intention of the act. Robinson v. Caldwelkl, 165 U. S. 359; loeb v. Trustee, 179 U. S. 472; American Sugar Refining Company v. Aew Orleans, supra.

In Poilman's Palace Car Company v. Cent/rdl Transportation Company, 171 IT. S. 138, an appeal was taken to this court and also to the Circuit Court of Appeals, and a motion was made in each court to dismiss the appeal, whereupon, by reason of the circumstances, we granted a writ of certiorari and brought up the record from the latter court before it had proceeded to decree. The question as to which was the correct route to reach this court became immaterial, and we disposed of the case on its merits. But in the present case the Circuit Court of Appeals went to decree, and we are obliged to deal with the appeal therefrom, in doing which the jurisdiction of that court necessarily comes under review.

The questions on the merits are, however, presented for disposition on the direct appeal from the Circuit Court.

In Shelby County v. Union and Planters' Bank, 161 U. S. 149, (1895,) it was decided that the capital stock of the bank was not exempt from ad valorem taxation by the provision of the charter in question and was liable to be taxed as the State might determine. Bank of Commerce v. Tennessee, 161 U. S. 134.

But the bank objects that notwithstanding this court has thus held that the exemption asserted does not exist, it must nevertheless be recognized, in this case, as existing, because it was so determined by the judgment pleaded as res judicata. T e judgment thus relied on as a bar to this assessment is repo in Memphis v. Union and Pla/nters1 Bank, 91 Tennessee, 5, (1892,) which involved the assessment of municipal taxes, or the years 1887 to 1891 inclusive, on the capital stock of t- e bank, and a privilege tax for the years 1889,1890 and 1

UNION & PLANTERS’ BANK v. MEMPHIS. 75

The Supreme Court of Tennessee there held in deference to the supposed scope of the decisions of this court in Farrington v. Tennessee, 95 U. S. 679, (1877,) and in Bank v. Tennessee, 104 U. S. 493, (1881,) that the bank was exempted by the charter from being assessed by the State, county, or municipality, for any taxes except as specified.

In Bank v. Memphis, 101 Tennessee, 154, (1898,) the conclusion announced in Shelby County v. Bank, 161 U. S. 149, was followed, and it was held to be the settled rule in Tennessee that the plea of res judicata is only applicable to the taxes actually in litigation, and is not conclusive in respect to taxes assessed for other and subsequent years. State v. Bank, 95 Tennessee, 221, 231.

As the judgment relied on as res judicata was not so regarded in Shelby County v. Bank, it could not be properly so regarded in the present case; but, apart from that, it is enough that in Tennessee the doctrine of resjudicata is not applicable to taxes for years other than those under consideration in the particular case, inasmuch as what effect a judgment of a state court shall ave as res judicata is a question of state or local law, and the taxes involved in this suit are taxes for years other than those involved in the prior adjudication. Phoenix Fire and Marine Insurance Company v. Tennessee, 161 U. S. 174.

In New Orleans v. Citizens' Bank, 167 U. S. 371, referred to y appellant s counsel, no claim was made that the judgment re on would not have been res judicata in the state courts, and attention was particularly called to the fact that the rule ouisiana was in accord with the conception of res judicata expounded in that case.

s the judgment pleaded had no force or effect in the Ten-

viewed by Lurton, J., in the Circuit Court of Appeals, 111 Fed. Rep. 561.

Decree of the Circuit Court in No. 67 affirmed.

Decree of the Circuit Court of Appeals in No. 221 reversed with a direction to dismiss the appeal a/nd writ of error.