Baker v. Hickman County

• Decision Date: 09 April 1932
• Parties: BAKER, Commissioner of Highways, v. HICKMAN COUNTY.
• Court: Tennessee Supreme Court

47 S.W.2d 1090

164 Tenn. 294

BAKER, Commissioner of Highways, v. HICKMAN COUNTY.

Supreme Court of Tennessee.

April 9, 1932

Appeal from Chancery Court, Hickman County; J. W. Stout, Chancellor.

Suit by R. H. Baker, Commissioner of Highways and Public Works against Hickman County to obtain declaratory judgment. From an adverse decree, the complainant appeals.

Decree in accordance with opinion.

T. P Henderson, of Franklin, and R. E. Maiden, of Dresden, for appellant.

R. L Peery, of Aetna, W. L. Pinkerton, of Centerville, and Pitts McConnico & Hatcher, of Nashville, for appellee.

SWIGGART J.

This action was brought by the commissioner of highways and public works, with whom the Attorney General and Reporter joined, to obtain a declaratory judgment with respect to the constitutionality of Public Acts 1929, chapter 145. Complainants have appealed from a decree of the chancery court sustaining the act.

Chapter 145 of the Public Acts of 1929 is limited in its application to Hickman county alone, by reference to population which excludes other counties. It directs that the state shall repay to said county, in the manner and subject to the provisions of the Public Acts of 1927, chapter 23, "all funds which may have been expended by said counties upon any road or roads which had heretofore [sic] or is now designated by the Department of Highways and Public Works of the State of Tennessee as a part of the State Highway System, and which road or roads appeared as such, or now appear as such upon the plans of said Department." The claim is to be allowed by the commissioner of highways and public works upon proof which satisfies him "that the funds [were] expended in the construction of said roads or highways that were at the time, or are now a part of the State Highway System." It is provided that the amount to be assumed by the state under this act shall not exceed $103,167.30.

The bill of the commissioner and the Attorney General recites that Hickman county has presented its claim under the act of 1929 for $103,167.30, the exact amount named as the maximum in the statute, expended by said county in constructing a road leading from Centerville, its county seat, to its north boundary line, a distance of seventeen miles, known as the Centerville and Dickson road; that after the completion of said road, but prior to the passage of chapter 145 of the Public Acts of 1929, the department of highways and public works designated this road as a part of the state highway system, thereafter assuming its maintenance as a part of the state highway system; and that the commissioner is satisfied from the proof submitted that the county, from 1919 to 1923, actually expended said sum in improvements and construction work on said road. It is averred that the commissioner is withholding his approval of the claim of the county, under the act of 1929, for the sole and only reason that he is advised that the act is unconstitutional and therefore void.

It seems obvious from the language of the act and the statements of fact made in the bill of complainants that the legislative intent was to reimburse Hickman county for the sum expended by it on the particular road described, which had been made a part of the state highway system at the date the act was passed.

Public Acts 1927, chapter 23, applies to all counties of the state. It provides for the reimbursement to the counties of all sums paid by them to the state department of highways, and used by the department in the construction of the state highway system, including money furnished and accepted after the enactment of the statute. This reimbursement is to be accomplished by annual payments from the proceeds of the privilege tax on the sale and storage of gasoline, supplemented, if found necessary after ten years, by the general funds of the highway department.

The claim of Hickman county under the act of 1929 does not come within the general act of 1927, because (1) the money was spent in the construction of a road not then a part of the state highway system, and (2) the money was spent by the county, through its own officers or employees, and was not "paid over *** to the Department *** and used by the Department." Public Acts 1927, chapter 23, section 1.

In 1931, during the pendency of this appeal, the General Assembly enacted chapter 59 of the Public Acts of 1931, amending the act of 1927, so as to include in the reimbursement to the several counties all sums "expended by such counties on a highway, or highways, which are now a part of the State Highway System," etc., limited in respect to each county to the amount of bonds, issued to procure the money so spent, outstanding and unpaid on June 1, 1931, and with a graduated deduction according to the time elapsed between the construction of the road and its designation as a state highway.

The record before us does not disclose the length of time elapsing between the construction of the road by Hickman county and the date of its designation as a part of the state highway system. Nor do the pleadings disclose whether the money expended was procured by a bond issue. It is, however, stated on the brief of the county in this court: "The money expended on this road was raised by a bond issue authorized by the legislature and these bonds will have to be paid either by taxes levied on the citizens of Hickman County or by the method provided in chapter 145 of the Acts of 1929."

Assignments of error as originally filed challenged the act of 1929 as violative of the Constitution of Tennessee, article 11, section 8, in that it confers upon Hickman county special rights, privileges, and benefits not granted to other counties, and thus creates an arbitrary class for the benefit of which the general law is suspended. It was also argued that the inclusion of Hickman county's claim would impair the obligation of the contract arising between the state and the counties under the act of 1927, diminishing to the extent of the added claim the fund available for payment to the counties under that act.

After the case had been submitted to the court we filed a memorandum opinion, calling attention to the importance of the questions involved, as affecting the public interest, and directed a second argument. We requested counsel to consider and aid us in determining whether the appropriation to Hickman county is made for a state purpose for which state revenues may be used; whether it violates the Constitution, article 2, section 31, inhibiting the giving or lending the credit of the state; and what, if any, effect the enactment of chapter 59 of the Public Acts of 1931 may have on the rights of the parties.

The construction of state highways has constituted a major portion of the work of the state government during the ten years preceding the enactment of chapter 145 of the Public Acts of 1929. It is a historical fact, within the common knowledge of all citizens of the state, that more than five thousand miles of improved highways have been constructed as a part of the state highway system, at a cost of many millions of dollars. This tremendous work has been accomplished by the state, through its department of highways and public works, under Public Acts 1917, chapter 74, and Public Acts 1919, chapter 149, and amendatory acts, with the federal government, the state, and the several counties sharing the expense of construction. The proportion of the cost borne by the counties has not been fixed by statute, and has varied according to the varying circumstances of the several construction projects. In the construction of roads with federal aid the relative burdens of the state and county have been smaller, with a corresponding increase when no such aid was available. In each case, with the exception of the cost of furnishing the right of way, fastened on the county by express statutory provision, the sum contributed by the county has been fixed by agreement between the county and the commissioner of highways, the statute vesting him with such authority. Public Acts 1919, chapter 149, section 22, provides: "The said State Highway Commission [the Comission was succeeded by a single Commissioner by Public Acts 1923, chapter 7] shall have the power within its reasonable discretion to require of any county where a road or roads are to be built to contribute its fair proportion of the funds necessary to construct said highway, but in no case more than 50 per cent. shall be required."

It is also a fact forming a part of the history of the state that a large proportion of the counties of the state, if not all of them, have issued bonds in considerable amount for money borrowed to pay the county's share of the cost of highways constructed within its boundaries, recognizing a local benefit from such construction in addition to that accruing to the state at large.

In this situation the Public Acts of 1927, chapter 23, was enacted, designed, and intended to make a new distribution of the cost of the state highway system as between the state and the several counties, the state assuming the burden theretofore cast upon the counties by the commissioner, acting under section 22 of chapter 149, Pub. Acts 1919.

Upon the adoption of this new scheme for the payment of the cost of the highways, it apparently developed that, as in the case of Hickman county, some of the counties did not wait for the commissioner to act, but proceeded to spend money in the construction of highways on their own account. That Hickman county was not alone in making such expenditures is a necessary inference from the fact of the enactment of Public Acts 1931, chapter 59. These expenditures were not included in the reimbursement provisions of the act of 1927, and were added thereto by the...