Baker v. Donegan

• Decision Date: 09 April 1932
• Citation: 47 S.W.2d 1095,164 Tenn. 625
• Parties: BAKER, Commissioner of Highways, v. DONEGAN.
• Court: Tennessee Supreme Court

47 S.W.2d 1095

164 Tenn. 625

BAKER, Commissioner of Highways, v. DONEGAN.

Supreme Court of Tennessee.

April 9, 1932

Error to Circuit Court, Dickson County; J. D. G. Morton, Judge.

Suit by R. H. Baker, Commissioner of Highways, etc., against Mont Donegan. From the judgment, the complainant brings error.

Affirmed.

L. D Smith, Atty. Gen., and John L. Neely and Roy H. Beeler, Asst Attys. Gen., for plaintiff in error.

Howard E. Brown, of Dickson, for Dickson county.

Frank S. Hall and Earl A. Brown, both of Dickson, for Mont Donegan.

SWIGGART J.

This action was begun in 1929, by petition of the commissioner of highways and public works of the state, seeking condemnation under the law of eminent domain of certain lands of Donegan for highway purposes. The action was successfully prosecuted and a jury of view assessed the damages. At the time the report of the jury of view was filed the existing statutes placed the burden of payment for the land taken upon the county of Dickson. The county excepted to the report of the jury of view, and demanded a jury trial in the circuit court upon the question of the amount of the damages to which Donegan was entitled.

The case so stood when the General Assembly enacted chapter 57 of the Public Acts of 1931, the general purpose of which was to transfer to the state liability for the payment of the cost of rights of way for state highways, to be paid by the state "as other highway expenses are paid." Pursuant to this statute, the circuit court rendered judgment for Donegan's damages against the state, and the state has appealed in error. Donegan did not appeal, and no assignments of error are made for him.

The statute of 1931 appears to have been enacted pursuant to a general scheme or policy to transfer to the state that part of the cost of the construction of the state highway system which had theretofore been cast upon the several counties. See Public Acts 1927, chapter 23, as amended by Public Acts 1931, chapter 59, and the opinion this day filed in R. H. Baker, Commissioner, etc. v. Hickman County, 164 Tenn. 294, 47 S.W.2d 1090.

At the time the state took possession of Donegan's land, the general revenues of the county were liable for the payment of compensation therefor. State Highway Department v. Mitchell's Heirs, 142 Tenn. 58, 216 S.W. 336. It is insisted for the state that the act of 1931, relieving the county of this liability to Donegan, would amount to the taking of Donegan's property without due process of law, etc. We are of the opinion that any question of this character is a right personal to Donegan, and since he does not complain that the state is substituted for the county as the party liable to him, the state has no standing to make the question.

Neither is it a valid constitutional objection to the effectiveness of the statute of 1931 that execution may not be awarded to Donegan to enforce payment of his judgment. Judgment was properly rendered against the state in an action instituted by the state, through the head of one of its administrative departments. It is the duty of the commissioner of highways to pay the judgment out of any moneys...