
    Carlock et al. v. City of Chattanooga.
    
      (Knoxville.
    
    September Term, 1914.)
    1. APPEAL AND ERROR. Review. Scope and theory of case.
    Where, though defendant hy its pleas interposed two distinct defenses, either of which, if sustained, would hare resulted in a dismissal of the action, the parties and the court ignored one of such defenses, such defense would in the supreme court he treated as having been abandoned in the trial court. (Post, p. 332.)
    Constitution cited and construed: Sec. 8, Arts. 11 and 1.
    Acts cited and construed: Acts 1911, ch. 591.
    Case cited and approved: Teasdale & Co. v. Manchester Produce Co., 104 Tenn., 267.
    2. STATUTES. Special or local laws. Suspension.
    Priv. Acts 1911, ch. 591, amending the Chattanooga charter, so as to provide that in eases of personal injury resulting from any cause originating in the neglect or failure of such city or its officers or agents to perform their duties, no suit shall be brought unless a verified statement of the amount and cause of the injury, and the time and place where it occurred, and the particular negligence causing it shall be presented to the mayor or city attorney within thirty days, is invalid, in that it violates Const., art. 11, sec. 8, providing that the legislature shall have no power to suspend any general law for the benefit of any particular individual, or pass any law for the benefit of individuals inconsistent with the general laws of the land, or grant to any individual rights, privileges, immunities, or exemptions not extended to any member of the community who may bring himself within the provisions of such law. .(Post, pp. 332-335.)
    Constitution cited and construed: Sec. 18, art. 11.
    
      Act cited and construed: Acts 1911, ch. 591.
    Case cited and approved: Fleming v. Memphis, 126 Tenn., 331.
    FROM HAMILTON.
    Appeal from the Circuit Court of Hamilton County. —Nathan L. Baohman, Judge.
    John A. Hood, Cooke, Swaney & Hope and Maega-eet H. Eevin, for appellants.
    Coleman & Eeieeson, for appellee.
   Me. Justice Buchanan

delivered the opinion of the Court.

Mrs. Julia A. Carlock and her husband sued the city of Chattanooga for the sum of $5,000 as damages for injuries averred to have been sustained by her resulting from a fall caused by defects in the construction and maintenance .of a sidewalk in the city of Chattanooga. . To. the declaration the city interposed two pleas, the first of which was the general issue of not guilty. For its second plea the city averred that the plaintiffs had failed to present to the mayor or city attorney of Chattanooga within thirty days after the injury a written, verified statement of the amount, nature, and cause of such injury and damage, and the time when and the place where such injury occurred, and the particular defect or negligence of the city or its officers or agents which it was claimed caused or contributed to the injury or damage.

The above matter, as pleaded by the city, was in the nature of confession and avoidance, because chapter 591 of the Published Private Acts of the year 1911 provided that “no suit shall be brought against said city unless” such written and verified statement as is above set out should be given' to the officials above named within the time stated.

To the second plea the plaintiffs demurred, on the ground that chapter ‘591, Acts of 1911, was unconstitutional and void: (1) Because contrary to the provisions of section 8, article 11, of the constitution of the State; and (2) on the ground that- the act was contrary to section 8, article 1, of the State constitution. The circuit court overruled the demurrer. Plaintiffs declined to plead further. The court then sustained the second plea and dismissed the suit.

It is to be observed here that the city interposed by its pleas two distinct defenses, either one of which, if sustained, would have resulted in a dismissal of plaintiffs’ action. The parties and the court, however, in the court below, ignored the defense made by the first plea, and that defense will, of course, in this court be treated as having been abandoned in the trial court. Teasdale & Co. v. Manchester Produce Co., 104 Tenn., 267, 56 S. W., 853. The case, therefore, turns upon the constitutionality of chapter 591, Acts of 1911.

It is insisted for the parties plaintiff that the act is invalid under the decision of this court announced in Fleming v. Memphis, 126 Tenn., 331, 148 S. W., 1057, 42 L. R. A. (N. S.), 493, Ann. Cas., 1913D, 1306, and we think the insistence is sound. It is true that the acts held to be unconstitutional and void in the.Fleming Case purported to grant total absolution from liability to the municipality for the-benefit of which they were passed in all cases and at all events falling within the terms of those acts, while under the operation of the act here in question such would not be the effect, if the notice should be given according to the requirement of the act. But this distinction is not fatal to plaintiffs’ insistence. We must test the act here involved by its application to the facts of this case. Notice was not given in this case as the act required, and if the act be valid it defeats plaintiffs’ right to compensation for the injuries sustained as the result of the negligence of the city.

Undoubtedly, under the law of the land as it existed at the date of the passage of the act in question, plaintiffs’ suit could be maintained at any time between the date of the injury and such time as the suit might be barred by the general statute of limitations, applicable to such an action, and under the law of the land, had plaintiffs’ injuries been caused by the negligence of any other municipal corporation in the State, and the failure by plaintiffs to give the notice required by the act in question would not have affected the right to compensation, or shortened the time within which the action for compensation might be brought; and if the act in question had not been passed, and the plaintiff Mrs. Oarlock kad. been injured as averred in ber declaration, tbe failure to give tbe notice required by tbe act would not bave affected tbe right to compensation, nor bave shortened tbe time within which tbe action should be brought.

From all of which tbe conclusion is inevitable that tbe passage of tbe act was an attempt by tbe lawmaking body of tbe State to suspend tbe general laws of tbe State for tbe benefit of a particular individual, tbe municipality of Chattanooga. Therefore it must be held that the act in question, when passed, was inconsistent with tbe general laws of tbe land, for that at tbe time of its passage tbe city of Chattanooga bad no such rights as it asserts under tbe act. It is also clear that tbe act granted to tbe city of Chattanooga privileges and immunities or exemptions other than such as tbe act extended to any other, because tbe act does not purport to confer any privilege or immunity or exemption other than that conferred upon the defendant city of Chattanooga.

Section 8, article 11, of tbe State constitution, provides 'that:

“Tbe legislature shall bave no power to suspend any general law for tbe benefit of any particular individual, nor to pass any law for tbe benefit of individuals inconsistent with tbe general laws of tbe land; nor to pass any law granting to any individual or individuals rights, privileges, immunities or exemptions other than such as may be by tbe same law extended to any member of the community who may be able to bring himself within the provisions of such law.”

We think it clear that the law-ipaking body, in the passage of the act in question, went beyond its power as limited by the above-quoted section of the State constitution.

We have examined the cases decided by this court which are relied upon by the city as sustaining its insistence that the act in question may be sustained, but we are of the opinion that the cases so relied on are not in point. On the brief for the city, cases are also cited from other jurisdictions; but they can have no controlling influence, if they do not accord with our own cases.

From what has been said, it results that, in our opinion, chapter 591, Private Published Acts of 1911, is unconstitutional and void, and therefore the judgment of the circuit court is reversed, and the cause remanded to that court for further proceedings.  