Heiskell v. Lowe

Mr. Justice Buchanan

delivered the opinion of the Court.

James L. Lowe, a resident, citizen, taxpayer, and duly registered voter of the city of Knoxville, Knox county, Tenn., filed a petition on his own behalf in the circuit court aforesaid against Samuel G. Heiskell, individually, and against E. A. Brown, John D. Caldwell, and H. T. Cooper, as election commissioners of and for the county of Knox. The petition recited the passage of chapter 498 as published in the Private Acts of the General Assembly of Tennessee of the Year 1911; that, while published with the private acts, it was, in fact, by its terms, a public act, and an amendment of chapter 207 of the Acts of 1907; that, under the terms of the act of 1911, the election commissioners had held an election by the qualified voters of the city of Knoxville for the purpose of electing a mayor and four commissioners for the city, at which election defendant Samuel G. *483Heiskell, John E. McMillan, and John I. Simpson were, respectively, each a candidate for the office of mayor; that the election returns showed that Heiskell had received 2,595, McMillan 2,581, and Simpson 37 votes; and that Heiskell was thereupon demanding of the election commissioners a certificate showing and declaring him.to have been elected to and entitled to hold the office of mayor of the city of Knoxville.

It recited that Heiskell had disqualified himself from holding- the office of mayor by a noncompliance with the terms of section 30, chapter 498, of the Acts of -1911, by which each candidate for mayor was required, on the day before the election and within three days after the election, to file with the recorder and publish, at least once, in a daily newspaper of daily circulation, his sworn statement of all his campaign and election expenses itemized, and by whom such funds “are contributed,” upon pain of being disqualified from holding the office he “seeks or has been elected to” in the event of failure so to do.

It recited that Heiskell did file with the recorder, between the hours of six and seven o’clock p. m. of the day before the election, a statement1 which, it avers, is not in compliance with section 30, but that no publication of the statement so filed Avas made on the day before the election; that it was, hoAvever, published on the morning of election day; and that he did make publication of a statement on January 22, 1912, purporting to show his campaign and election expenses. Copies of each of these statements are filed as exhibits with the petition, *484and they show that they were intended to be considered as a compliance with section 30, but in each of them it is made to appear that Mr. Heiskell contended that section 30 of the act, because of the provisions of section 44 of the act, did not go in effect until the fourth Saturday in January, 1912, and therefore he was under no legal obligation to file or publish either of the statements, The petition avers that each of the statements was insufficient as a compliance with section 30, in that there was no itemization in either of them as required by section 30, and in that, it averred, there was contributed to a so-called “Democratic campaign fund” and used in aid of the election of Samuel G. Heiskell “many thousands of dollars,” namely, ten thousand dollars, or more.

The petition prayed for process, waived the answer of Heiskell under oath, and prayed for a “decree” that he had disqualified himself from holding the office of mayor for and during the term for which he was a candidate, and that the said election for said office of mayor be declared void, and such result certified to the election commissioners of Knox county, Tenn., to' the end that they may hold another election, and for a preliminary injunction restraining defendant Heiskell from receiving a certificate of election, and from taking the oath of office, or qualifying as mayor, or performing any duties or functions of said office, and that the election commissioners be enjoined from issuing a certificate of election to the defendant Heiskell, or recognizing him as legally elected as an officer and entitled to the certificate of *485election, upon the ground that be is disqualified from receiving tbe certificate of election thereto. The petition also prayed for general relief, etc.

The petition was filed January 23, 1912, and, on the same day the preliminary writ of injunction was granted as prayed. Defendants were duly served with process, and the defendant Heiskell demurred to the jurisdiction of the court on several grounds. This demurrer was overruled, hut the court modified the injunction, so as to restrain defendant Heiskell from taking and holding the office of mayor under the election held the 20th day of January, 1912, and not for a term of four years from that date. A motion to dissolve the injunction on several grounds was made by defendant Heiskell, which was, likewise, overruled by the court. Whereupon, defendant Heiskell declining to further plead, the court, because of the failure of defendant Heiskell to comply with section 30 of the act of 1911, finally adjudged and decreed that the election of January 20, 1912, was void; that Heiskell had disqualified himself from being inducted into the office of mayor under that election, but no further or otherwise; that he be enjoined from receiving a certificate of election from defendant commissioners, and from being inducted into office under the election; that there was a vacancy in the office of mayor of Knoxville, which fact the clerk of the circuit court was directed to certify to the board of commissioners of the city of Knoxville, to the end that such vacancy be filled as provided by section 12 of the act of 1911; that *486Heiskell pay the costs of the cause, for which execution was awarded.

Heiskell prayed and perfected an appeal to the court of civil appeals. Lowe prayed an appeal from so much of'the decree as was in accord with the prayer of his petition to the supreme court of this State. Such appeal was refused, but he was granted such appeal to the court of civil appeals. In that court, Lowe moved to transfer the cause to this court, which motion was granted. So the cause is before us on assignment of error by each of the parties.

The demurrer to the jurisdiction of the circuit court was upon the following grounds:

First, that the petition presented neither an election contest nor a quo warranto proceeding, but merely a quia timet action, of which that court had no jurisdiction.

Second, that section 80 of the act of 1911 was not in force and had no application to the election of January 20, 1912.

Third, that, if section 30 was in force at the date of election, the exhibits to the petition showed a compliance therewith.

Fourth, that the circuit court was without power in any aspect of the case to restrain the action of the election commissioners in certifying the result of the election, and that no grounds were stated in the petition for any such relief. The assignments of error1 made on behalf of defendant Heiskell in this court raise the same questions presented by the demurrer. We will consider *487the case Avithout discussing seriatim the assignments of error.

It is said that Mr. Heiskell rendered himself ineligible to the office of mayor of Knoxville by his failure to comply with the provisions of section 30 of chapter 498 of the Private Acts of 1911.

It is alleged that, under the requirements of this section, every candidate for an elective office was required to file, on the day before election, with the recorder, a statement of his campaign and election expenses; that he was required to file such statement with the recorder within three days after election; that he was required to make publication of such statements on the day before election, and also required to make publication within three days after election; that these statements were required to be itemized, and to show by Avhom the funds used in the campaign were contributed, and the penalty for failure to comply with these requirements was disqualification from holding the office which the candidate sought or had been elected to.

It is charged in the petition that Mr. Heiskell made no statement on the day before election, but it is conceded that he made such a publication within three days after the election.

It is also charged that there was no sufficient compliance with the statute in the itemization of his expenses.

A further charge of the petition is that a large campaign fund, amounting to $10,000 or more, was used in behalf of Mr. Heiskell’s interests in this election, and *488that he was required, under a proper construction oí the act, to file a statement and make publication thereof in respect to the collection and expenditure of this campaign fund.

So that the three particulars in which the defendant is alleged to have violated this act are that (1) he failed to make publication on the day before election; (2) he failed to properly itemize the statements filed and published by him;(3)he failed to make any statement with reference to the democratic campaign fund charged to have been used in his behalf.

It appears that on the day before election Mr. Heiskell filed a statement, heretofore referred to, which was printed in the morning paper election day, and within three days after election he filed the other statement heretofore mentioned, which was also printed in the morning paper.

The language of section 30 of the act upon which petitioner relies is as follows:

“That every candidate for an elective office and every elective officer of the* city of Knoxville shall, the day before election, and within three days after the election, file with the recorder, and publish at least once, in a daily newspaper, of daily circulation, a sworn statement of all his campaign and election expenses, itemized, and by whom such funds are contributed; and any candidate for an elective office and any elective officer failing to comply with the requirements of this act shall be disqualified from holding the office he seeks or has been elected to.”

*489Giving to tlie foregoing language its most natural construction, it would seem that it requires only one publication of campaign and election expenses. The provision is that the candidate shall “publish at least once, in a daily newspaper, of daily circulation, his sworn statement,” etc.

It is provided that he shall “file” a statement “on the day before election, and within three days after the election,” and that he shall “publish” a statement “at least once,” etc.

As to the publication of these statements, there is no requirement, except that such publication be made at least once, in a daily newspaper, of daily circulation. Inasmuch, therefore, as only one publication is required, it could not have been intended that it should be made until after the preparation and filing of the last statement of expenses; that is, within three days after the election.

If, however, we give the act the other construction, and hold it meant that candidates, on the day before election, should file and publish a statement, and within three days after the election should file and publish a statement, still the defendant here would not be at fault, under this statute, in failing to make such publication of expenses on the day before this election; for, by its own language, this act was not in effect in this particular on that day.

Section 44 of the act is as follows :

“That for the purpose of giving the requisite legal *490notice of twenty days of tbe general municipal election, at which shall be elected the first board of commissioners, as provided herewith, it shall take effect from and after December 30, 1911. That for the purpose of electing the first hoard of commissioners, as provided herewith it shall take effect on- the third Saturday in January, 1912, -and, for other purposes, it shall take effect and become operative on the fourth Saturday, in January, 1912, public welfare requiring it.”
“An act can have no force until it becomes a law and takes effect.” Lewis’ Sutherland, Stat. Const., sec. 182.

On December 30, 1911, this act went into effect for the purpose of giving the requisite twenty days’ notice of the election.

On the third Saturday in January, 1912, it went into effect for the purpose of electing the first board of commissioners.

On the fourth Saturday in January, 1912, it went into effect for all other purposes.

On the day before the third Saturday in January, the day before the election, when it is alleged defendant failed to comply with the provisions as to the publication of expenses, the act had gone into effect in only one particular; that is, for the purpose of giving the twenty days’ notice of the election. Por no other purpose did the act become effective until election day, the third Saturday in January. Defendant, therefore, cannot be held to have violated section 30 of the act by anything he did, or failed tp do, on the day preceding the *491third Saturday in January. It was not in effect on the day before the third Saturday in January.

A statute does not have a retrospective effect when, by its terms, it is to take effect at a fixed future date. 36 Cyc. 1204.

It is a rule of statutory construction that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from 1he language used. In every case of doubt, the doubt must be solved against the retrospective effect. 36 Cyc. 1205.

“The general rule is that statutes will be construed to operate prospectively only, unless an intention to the contrary clearly appears. It is said that a law will not be given a restrospective operation, unless that intention has been manifested by the most clear and unequivocal expression.” Lewis’ Sutherland, Stat. Const., 642. .

Many illustrations of this rule are collected in the two works referred to. An accurate statement of the rule is by the supreme court of Texas, thus:

“We apprehend that no universal rule of construction can be adopted when a statute which makes a distinction between future and past transactions is passed upon one day, to taire effect upon another; but we think the general rule is that a statute speaks from the time it becomes a law, and that what has occurred between the date of its passage and the time it took effect is deemed, with respect to the statute, a past transaction. This is in analogy to the rule for the construction of *492wills. This rule should not be applied when the language of the act shows a contrary intention.” G., H. & S. A. R. R. Co. v. State, 81 Tex., 572-598, 17 S. W., 67, 72, cited in Lewis’ Sutherland, Stat. Const., sec. 188.

It cannot be said that the legislature intended any part of this act to go into effect prior to the third Saturday in January, 1912, except as the act itself provided. The express enactment that it should go into effect for the purpose of giving notice of election on December 30, indicated by this expression of the legislative will the exclusion of any idea that it should then go into effect 'for other purposes.

Before passing from the contention that this section, although, by the teiuns of the act, it did not go into effect until the third Saturday in January, 1912, imposed duties and obligations upon the defendant as of the day before the third Saturday in January, it may be well to refer to former language of this court:

“The rule is so well settled it is hardly worth while, at this late date, to cite authorities in support of it, that in construing an act of the legislature the courts will always give it prospective and not retroactive force, unless the latter effect is expressed by clear and positive command, or it is to be inferred by necessary or unequivocal and unavoidable implication.” Dugger v. Insurance Co., 95 Tenn., 245-249, 32 S. W., 5, 6 (28 L. R. A., 796).

So, while we doubt if, upon a proper construction of this act, a candidate could be required to make publication of his campaign expenses on the day before election, *493even if we are mistaken, no such requirement could be made of the candidate in this election, because section 30 was not in force on the day preceding this election.

Publication was made by Mr. Heiskell within three days after the election, setting out one item not included in the statement published election day, and referring to and adopting the former statement and publication then made. We think that these two publications, the one on the day of election and the other on the third day after election, referring to and embodying the former, was a sufficient compliance with the provision that publication should be made within three days after the election.

Considering next the character of these statements:

As to the itemization of the statement filed on the day before election, we think there can be no question made upon the sufficiency of detail in the second paragraph; that is, as to the sums paid stenographers.

Regarding the sum given for charitable purposes, since it was in no wise connected with the campaign, there was no necessity for including it. Theré being no necessity for making it a part of the statement, of course, there _could be no necessity for setting out the items and details.

Petitioner’s criticism is directed at the item of $500 contributed by the candidate to the Democratic campaign fund, and it is said there is no effort to make it appear for what purpose this sum was ultimately used. Prom the statement published, this sum appears to have *494been given with the intention that it should be applied to such expenses as office rent, clerk hire, printers’ bills, postage, and brass bands; but it is urged that the statement should have' gone further, and have shown as a matter of fact how this money was actually used. The petition indicates that there were five offices contested for in this election, and that Mr. Heiskell was only one of five on his ticket. It is charged that there was contributed to the Democratic campaign fund, and used to aid in the election of Samuel G. Heiskell, many thousands of dollars, namely, $10,000 or more; and it is further said in the petition that it was the intention of this act to require every candidate to show, not only what he himself had expended, but what he had caused to be expended.

According to the statements of Mr. Heiskell, none of the money personally expended by him was contributed to him; and according to his statement, his contribution to the Democratic campaign fund was made for proper and legitimate purposes.

Can he be required to go into details as to the expenditure of the balance of the Democratic campaign fund and the sources from which it came, in the absence of a charge in the petition that he had some control over the distribution of these funds?

The petition contained no allegation whatever to the effect that Mr. Heiskell had any control or management of the Democratic campaign fund. Any statement of this import seems to have been avoided. On the contrary, reference is expressly made to “the manager *495of said funds,” or “the agent by which it was disbursed,” and there is no averment that Heiskell directed or advised with such agent. It does not appear in the petition that Heiskell aided or participated in the collection or expenditure of this fund at all.

As a matter of course, a candidate should not be allowed to hide behind a campaign manager and escape the provisions of this act. If it was charged or made to appear that the control of this campaign fund was directed by Heiskell, he would be required, under the act, to go into the details of its expenditure and explain the sources from which it came. In a campaign, however, made in behalf of five candidates, where the campaign fund is controlled by agents or managers, we do not think it was the intention of the act to make any one of the candidates account for the expenditure of the entire campaign fund, handled by others, when there is no charge that such candidate advised, directed, or participated in the distribution of the fund. The mere fact that the fund was used for his benefit does not place him within the purview of the statute, unless to him there be imputed some control over the fund. The campaign manager is a well-known figure in every election. To him are intrusted the details and the financing of the campaign. Where several candidates are running on a particular slate or ticket, it is almost universally the custom to intrust their common interests to the direction of some political manager. Candidatés seldom have a definite idea of the particulars relating to their campaign expenses. They cannot bo expected to have *496ill many cases. They have no control over these expenditures, and, when information is desired with reference to such expenses, it is from the managers that such information is sought, by investigating committees and others. This ivas a well-known condition of affairs existing at the time of the passage of this act, and we do not believe it ivas intended by the legislature to require candidates for office, under this statute, to go into the details of expenditures which they did not direct. ' If such was the intention, the act should have been broader in its terms. Had it been charged that this campaign fund was collected and disbursed under the supervision or advice of Mr. Ileiskell, the case would be different; but, in the absence of such a charge, the expenses of the “Democratic campaign” cannot be called “his campaign and election expenses,” within the mean-. ing of the act.

Coming to the statement filed and published after the election, there appears to be only one additional item thereon, namely, $15 to Mr. Wood. This is somewhat indefinite; but it is the statement of a single item, and the name of the -person to whom it was given is set out. At any rate, it is a small matter, and should not be allowed to affect the result.

This petition concedes that Mr. Heiskell was elected to the office of mayor of the city of Knoxville by a majority of fourteen votes. There is a general charge of fraud contained in the bill, but an entire absence of any specific averment as to the particulars • and incidents of the fraud. For many years, this court has *497consistently refused to consider charges of fraud in election contests, unless the alleged acts of fraud -were set out in detail. This is merely the enforcement of a rule of good pleading, although a wise and necessary rule. There is seldom an election held after which there are not made, hy disappointed persons, charges of fraud. Such charges are so common as to excite'little public interest, and are attributed to disappointment and chagrin. Such indefinite charges are never considered hy the courts.

In this case it may he observed that the unsuccessful candidate, although defeated by a majority of only fourteen votes, is not before us making complaint. It is a serious thing for any court to interfere with the result of an election, and set aside what appears to he the expression of the popular will. No court will do so on slight ground, and no court will . enter upon the consideration of such a matter on vague and indefinite pleadings. Contestant’s right must he clear, and his case specifically averred.

In this case, in the absence of specific averment that Mr. Heiskell directed and controlled the expenditure of this campaign fund, when he was only one of five candidates in whose behalf it was raised, and when no knowledge of its sources or of its application is imputed to him by the petition, we do not think his right to the office to which he has been elected can be questioned by reason of his failure to itemize such expenditures and make publication of the result.

*498In the absence of an allegation that he had some supervision over the collection and expenditure of this campaign fund, he cannot be required to go into the details of either.

In conclusion, and reverting to the question of the proper construction of this statute, it is our opinion that, by the plain terms of section 44 of the act, section 30 thereof was not in force and effect until the fourth Saturday in January, 1912, one week after Mr. I-Ieiskell was elected. There is no room for a construction of section 44 of the act, because, from the language used in it, there can be no doubt about the intention and purpose of the legislature in its enactment. And to sustain this view we quote the following from an opinion of this court delivered by Judge McKinney:

“Now, what is the doctrine in regard to the interpretation'of statutes, as maintained by the most approved authorities? Blackstone says (1 Comm., 91) that acts of Parliament that are impossible to be performed are of no validity; and if there arise out of them, collaterally, absured consequences, maniféstly contradictory to reason, they are, with regard to those collateral consequences, void. But he adds: ‘If Parliament will positively enact a thing to be done which is unreasonable, I know of no power, in the ordinary forms of the constitution, that is vested with authority to control it.’ Christian, in his note upon this passage, questions, and perhaps justly, its correctness in part. He says: £Tf an act of Parliament is clearly and unequivocally expressed, I conceive it is neither void in *499its direct nor collateral consequences, however absurd and unreasonable they may appear. If tbe expression, wall admit of doubt, it will not then be presumed that that construction can be agreeable to tbe intention of tbe legislature, tbe consequences of which are unreasonable; but, where tbe signification of a statute is manifest, no authority less than that of Parliament can restrain its operation.’ ”
“In Dwarris on Statutes, 702, 703, it is said: ‘Where tbe legislature has used words of plain and definite import, it would be very dangerous to put upon them a construction which would amount to bolding that tbe legislature did not mean1 what it bad expressed.’ In a recent American work on Statutory Law, it is said that tbe intention of tbe legislature is to be learned from tbe words it lias used; . . . and, if that intention is expressed in a maimer devoid of contradiction and ambiguity, there is no room for interpretation or construction, and the judges are not at liberty, on consideration of policy or hardship, to depart from tbe words of tbe statute; that they have no right to make exceptions or insert qualifications, however abstract justice or tbe justice of tbe particular case may seem to require it. Sedgw. on Stat. & Const. Law, 295.”
“It is obvious that to do so would be to transcend tbe boundary separating judicial construction from judicial legislation. It is a recognized principle of exposition, too, that it is not allowable to interpret what has no need of interpretation.” Kirk v. State, 1 Cold., 346-348.

In another case, this court said:

*500“If the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation.” State, ex rel., v. Manson, 105 Tenn., 287, 238, 58 S. W., 319, 320.

Prom what has been said, it follows that the suit of the petitioner is dismissed, and the injunction thereon issued is dissolved, and petitioner and his sureties will pay the costs of the cause.