Nashville, C. & St. L. Ry. v. Baker

• Decision Date: 19 May 1934
• Citation: 71 S.W.2d 678,167 Tenn. 470
• Parties: NASHVILLE, C. & ST. L. RY. v. BAKER, Com'r, et al.
• Court: Tennessee Supreme Court

71 S.W.2d 678

167 Tenn. 470

NASHVILLE, C. & ST. L. RY. v. BAKER, Com'r, et al.

Supreme Court of Tennessee.

May 19, 1934

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit by the Nashville, Chattanooga & St. Louis Railway against R. H Baker, Commissioner, etc., and others. From an adverse decree, the State appeals.

Reversed and bill dismissed.

Roy H. Beeler, Atty. Gen., and Edwin F. Hunt, Asst. Atty. Gen., for the State.

Fitzgerald Hall, of Nashville, for appellee.

COOK Justice.

By chapter 132, Pub. Acts of 1921; chapter 35, Pub. Acts of 1923; chapter 88, Pub. Acts of 1925; Code, § 2638 et seq., it was provided that--

"The state department of highways through its commissioner, shall have the power to eliminate grade crossings of any railroad or interurban railway track on any of the main traveled roads designated by the commissioner as included in the general highway plan of the state, whenever, in the discretion of the said commissioner, the elimination of any such grade crossing is necessary for the protection of persons traveling on any such highway or any such railroad." Code, § 2638.

When any such grade crossing is ordered to be eliminated, the commissioner shall determine the location of the crossing to be substituted and the grade thereof whether it shall pass over or under the railroad tracks." Code, § 2639.

By subsequent provisions of the statute (Code, § 2642), the railroad is required to bear half the expense of eliminating the grade crossing, and right of appeal is given the railroad to have the action of the commissioner reviewed by the Railroad and Public Utilities Commission.

The state department of highways constructed highway No. 20 from Hohenwald, in Lewis county, though Henderson county, to a highway connection in Madison county, and, pursuant to the statute, required the railroad to share the cost of eliminating a grade crossing at Lexington, in Henderson county. The bill was filed by the railway to avoid the action of the state highway department upon the theory:

(1) That the construction of the highway, its routing through Lexington, and the underpass at the railroad crossing, were not designed to meet local transportation needs, but to supply a link in a nationwide system of highways; and the state was not exercising its power in applying to this situation the statute for the elimination of the grade crossing, but was acting in obedience to plans of the federal government designed to create a nationwide superhighway system.

(2) That, under modern transportation and economic conditions, chapter 132, Pub. Acts 1921, is violative of the organic law, both state and federal, and, under the facts shown by the record, the statute, properly construed and applied, is not enforceable against the railway, because the highway department, by its action, merely created an additional crossing, without eliminating old ones, in obedience to the requirements and in conformity with the regulations of the Federal Bureau of Highways.

The chancellor found that the underpass at Lexington was necessary, was properly located, and constructed at a reasonable cost of $17,400. He said that under ordinary circumstances the statute, chapter 132, Pub. Acts 1921, would be applicable to that situation, but the state highway department was not exercising power for the state, but was proceeding under and in conformity with the general plan of internal improvement fostered by Congress in conjunction with the several states to make a nationwide system of highways in the interest of interstate commerce by motor vehicles in active competition with railroads. We quote from the conclusion of the chancellor's finding and decree:

"The bill of complaint did not challenge the validity of the Tennessee statutes in question under all conditions but it was frankly admitted in the brief and the argument that they might be valid under certain situations. The challenge here was only when there exists such a situation as presented by the bill of complaint and the testimony. The Court is of the opinion that the challenge to the validity of these statutes, under these particular conditions, on the several grounds set out in the bill of complaint, is sound and that said statutes are, under such conditions, in violation of both the Constitutions of the State of Tennessee and of the United States and that the order of the Highway Commissioner of Tennessee supposedly made pursuant to those statutes is also invalid on that account; and that the demand for the payment of money by the Railway towards the cost of this project is without warrant in law and should be permanently enjoined.

It is, therefore, ordered, adjudged and decreed that Chapter 132 of the 1921 Public Acts of Tennessee, as amended, be and it hereby is declared null and void, as being in violation of the Constitution of the State of Tennessee and of the United States, in so far as applicable to such a state of facts as set out in the bill of complaint as amended and as disclosed by the evidence."

The state appealed and insists that the chancellor erred in declaring the act void and in holding it unenforceable under the facts. The courts cannot attempt to control legislative policy, nor can they inquire into the expediency, propriety, or even the justice of a statute which violates no provision of the Constitution. Henley v. State, 98 Tenn. 665, 41 S.W. 352, 1104, 39 L. R. A. 126; State v. Lindsay, 103 Tenn. 631, 53 S.W. 950; Walters v. State, 2 Shan. Cas. 69; Ballentine v. Mayor, etc., of Town of Pulaski, 15 Lea (83 Tenn.) 649, 650; Townsend v. State, 147 Ind. 624, 47 N.E. 19, 37 L. R. A. 299, 62 Am. St. Rep. 477.

In some instances municipal ordinances have been held unenforceable, maybe void, upon a showing that changed conditions render them unreasonable or inapplicable under particular circumstances or a given situation, but we find no authority for extending that rule to statutes. No violation of any provision of the Constitution is apparent upon the face of the statute, chapter 132, Pub. Acts 1921, and none has been suggested by the briefs and argument. It must be conceded that the state, in the exercise of the police power, may directly or through its municipalities compel railroads to share the cost of eliminating grade crossings at railroad tracks, City of Memphis v. Southern Railway Co. (Tenn. Sup.) 67 S.W.2d 552; Nashville, C. & St. L. Railway v. Drainage District, 149 Tenn. 490, 261 S.W. 975; Harriman v. Southern Railway Co., 111 Tenn. 538, 82 S.W. 213; and also that the state may relocate a highway or build a new highway, and, when necessary for the public safety, may, by the exercise of the police power, require a railroad whose track is encountered by the new location to share the reasonable cost of eliminating a dangerous grade crossing, Chicago & N.W. R. Co. v. Illinois Commerce Commission, 326 Ill. 625, 158 N.E. 376, 55 A. L. R. 654, and annotations; Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N.W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557.

The question of whether the provisions of the act in question have been rendered burdensome or unreasonable by changed economic and transportation conditions, or whether under existing circumstances have become unfair or inequitable, involves matter of legislative policy, dependent on the result of audits and accountings to ascertain the comparative burdens of taxation upon railroads and other modes of transportation and their comparative expenditures and earning capacity. Courts cannot go into and consider such questions any more than they could consider changed mental attitudes to determine the constitutionality or enforceability of a statute.

The location of highway No. 20, which is a link in the highway extending from Nashville to Jackson and Memphis, and the requirement of the state highway department that the railway share the cost of eliminating grade crossing at Lexington, were acts of the state government. The federal aid contributed toward the establishment of a state highway system, it appears from the record, would not exceed 10 per cent. of the total expenditures by the state. Its contributions were received and applied by the highway department as provided by chapter 149, Pub. Acts 1919. The allotment of federal aid toward the construction of the 9.5 miles of the section of highway from Lexington to Parsons was $100,826.59, or half of the estimated cost of that portion of the road, was accepted by the highway department under that Act. The contribution was made on condition that the highway department conform to prescribed federal engineering and construction standards.

Admitting the insistence of complainant that the primary object of highway construction and the object of federal contribution to highways is to invite and stimulate interstate traffic or travel upon the highways, it does not follow that the state roads are not primarily designed to serve the people of the state. Assuming that the Federal Bureau of Public Roads, through its power to grant or withhold federal aid to state roads, dictated engineering details on highway No. 20, it was nevertheless a state highway connecting the county seats of Lewis, Perry, and Henderson counties with other state roads in conformity with the provisions of section 8, c. 100, Pub. Acts 1915, and sections 7, 8, and 9, of chapter 149, Pub. Acts 1919.

R. H Baker, state commissioner of highways, testified that the object of the department of highways and the object of the federal government was to build state roads in such way as to make them connect with main highways of other states. But that would not make the construction of a state highway an act of the federal government. We quote from Mr. Baker's...