Cheatham County v. Murff

• Decision Date: 06 April 1940
• Citation: 138 S.W.2d 430,176 Tenn. 93
• Parties: CHEATHAM COUNTY et al. v. MURFF et al.
• Court: Tennessee Supreme Court

138 S.W.2d 430

176 Tenn. 93

CHEATHAM COUNTY et al. v. MURFF et al.

Supreme Court of Tennessee.

April 6, 1940

Appeal from Chancery Court Cheatham County; A. F. Officer, Special Chancellor.

Suit in equity by Cheatham County and others against Fred Murff and others, to challenge the constitutionality of the Private Act setting up a detailed scheme for the maintenance, operation and control of the roads, bridges, and levees designated, but which actually applies to Cheatham County alone. From a decree holding the act to be valid, the complainants appeal.

Decree affirmed.

L. J Pardue, and P. O. Pitt, both of Ashland City and Joe Brown Cummings and Albert Williams, both of Nashville, for complainants.

Cornelius McKinney & Gilbert, of Nashville, and P. H. Duke, of Ashland City, for defendants.

GREEN Chief Justice.

The bill filed in this cause challenged the constitutionality of chapter 442 of the Private Acts of 1939. The chancellor held the Act to be valid and the complainants have appealed.

The most serious charge made against the Act is that it violates that portion of Section 17 of Article 2 of the Constitution providing that "All acts which repeal, revive or amend former laws, shall recite in their caption or otherwise, the title or substance of the law repealed, revived or amended."

The scope of the Act involved is fairly indicated by its caption. The Act is lengthy, containing twenty-five sections, and sets up a detailed scheme for the maintenance, operation and control of the roads, bridges and levees in counties designated. Actually it applies to Cheatham County alone.

The caption of the Act is as follows:

"An Act applying to each county in the State having a population of not less than Nine Thousand and Twenty (9,020) nor more than Nine Thousand and Thirty (9,030), according to the Federal Census of 1930, or any subsequent Federal Census; creating a County Highway Commission of six (6) members, with authority to employ a County Road Supervisor; regulating the working, laying out, construction, repair and maintenance of public roads, bridges and levees in any such county; providing for the election, qualification and organization of said County Highway Commission; fixing and defining the duties, powers, compensation and terms of office of said Commission and the members thereof and the County Road Supervisors; providing for the opening, closing or changing of roads by securing rights-of-way for same and for the raising of revenue for roads, bridges and levee purposes and for labor and material to be used thereon; directing, authorizing and empowering the Quarterly County Court to levy taxes for roads, bridges and levees and providing for the collection of the same; and providing for the taking over by the Highway Commission and the Supervisor hereby created of all the machinery, tools and equipment now owned in any county to which this Act applies for the purpose of building roads in any such county; and laying off each county to which this Act applies into road districts, and to repeal Chapter 775 of the Private Acts of 1927, and all Acts amendatory thereof, and all other laws in conflict with the provisions of this Act."

The contention is that this Act of 1939 proposes both in its caption and body to repeal a former law and that the reference to that law merely as "Chapter 775 of the Private Acts of 1927" is not a recital of its title or substance and is inadequate under the constitutional provision above quoted.

Chapter 775 of the Private Acts of 1927 was likewise an Act setting up a scheme for the maintenance, operation and control of the roads, highways and bridges in Cheatham County and the chancellor was of the opinion that, the Act of 1939 covering the same ground as that covered by the Act of 1927, the later Act worked a repeal by implication of the former Act. Accordingly he treated the words "to repeal Chapter 775 of the Private Acts of 1927," etc., contained in the title and section 23 of the Act of 1939 as surplusage, ineffective to characterize the Act of 1939 as a distinctive and expressed attempt to repeal a former law.

It is of course conceded by counsel that repeals by implication are not governed by the rule applicable to express repeals and, as we understood the argument, it is not denied that this Act of 1939, if otherwise valid, would have accomplished an implied repeal of the Act of 1927 had all reference to the former Act been omitted from the later Act.

The narrow question thus presented is whether a law complete in itself, dependent on no former law, and suitably entitled, must be destroyed because it contains an abortive reference to a former law repealed by the necessary implications of the later law. This court has not as yet affirmed such a proposition but on the contrary previous decisions support a negative conclusion.

In many decisions the court has said that a general recital in the caption or body of a particular Act of the Legislature to the effect that all previous laws in conflict were repealed was without force. That "its presence in the bill did not make the act a repealing law or a nonrepealing law; and it will not be regarded for the purpose of vitiating the law, nor will it be permitted to have that effect." State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 484, 34 L.R.A. 656; Memphis v. American Express Co., 102 Tenn. 336, 52 S.W. 172; Turner v. State, 111 Tenn. 593, 69 S.W. 774; Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62; Hibbett v. Pruitt, 162 Tenn. 285, 36 S.W.2d 897.

In McCamey v. Cummings, 130 Tenn. 494, 172 S.W. 311, 312, the caption of the Act under consideration, after attempting to indicate its subject, proceeded "and to amend section 2423 of T. & S. Code." The court treated the words quoted as mere surplusage. In this particular the case has not been criticized, although so much of the decision as applied the doctrine of elision to save an Act dealing with a matter beyond the scope of its title has often been under fire.

In Stinnett v. State, 142 Tenn. 94, 217 S.W. 343, the Act challenged was entitled "An act to amend the criminal laws of the state of Tennessee, and to make the breaking and entering into the business house, outhouse, or any other house of another, other than a mansion house, with intent to commit a felony, a felony." Acts 1871, c. 39. The Act went on to describe the offense, as indicated in the caption, and provided punishment for its commission. The court disregarded the reference in the caption to "the criminal laws of the state of Tennessee" and said that the statute was in fact not amendatory in its nature but really created a new offense. The indefinite reference to former laws was held harmless.

We are not able, in this connection, to distinguish between the effect of a clause generally repealing all former laws in conflict and a clause repealing former laws by reference to chapter numbers of the published Acts of the Legislature for particular years. In the same plight are clauses repealing numbered sections of unofficial compilations of our statutes. In none of these cases is "the title or substance of the laws repealed" recited. In no one of these instances, more than in another, should such a clause be looked to for the purpose of vitiating the law in which it is contained or be permitted to have that effect.

This court has not stricken down any autonomous statute because of its failure to recite the title or substance of previous legislation touched by it. Most of the Acts of the Legislature held invalid for this constitutional defect were dependent for their force, indeed for their sense, on previous laws, not adequately recited.

Perhaps our leading case dealing with this particular constitutional provision is Memphis Street Ry. Co. v. State, 110 Tenn. 598, 75 S.W. 730. Chapter 43 of the Acts of 1903 was there under consideration. It undertook to amend "Chapter 52 of the Acts of 1891, being Sections 3074, 3075 and 3076, Shannon's Code of Tennessee," so as to include all street railroads in designated counties. This was all. The Act was altogether dependent on a previous law for its meaning and the quoted reference to such law was no recital of its title or substance and the Act was accordingly held bad.

The opinion in Memphis Street Ry. Co. v. State, supra, collates all previous decisions of this court in point. We have re-examined all of them. All of these decisions holding Acts of the Legislature unconstitutional for inadequate reference to previous laws dealt with Acts which were likewise entirely dependent on previous laws for their sense as well as for their effect. None of the Acts stricken down was inherently effective. We except from this observation cases decided prior to Home Insurance Co. v. Taxing District, 4 Lea 644, 72 Tenn. 644, in which it was held for the first time that repeals by implication were not controlled by the constitutional provision under discussion.

As explained in Turner v. State, 111 Tenn. 593, 69 S.W. 774, the case of Shelton v. State, 96 Tenn. 521, 32 S.W. 967, dealt with an Act amendatory in nature, the provisions of which were operative in that sense only--dependently operative--and such Act was bad because of insufficient reference to former laws amended.

Following Memphis Street Ry. Co. v. State, supra, are Railroad Co. v. Maxwell, 113 Tenn. 464, 82 S.W. 1137; State v. Smith, 119 Tenn. 521, 105 S.W. 68; Hessig-Ellis Drug Co. v. Stone, 129 Tenn. 608, 167 S.W. 864; Willis v. Mann Construction Co., 145 Tenn. 318, 236 S.W. 282; and Mattei v. Clark Hardware Co., 155 Tenn. 184, 290 S.W. 977. All these cases dealt with Acts of the Legislature inoperative in themselves, not autonomous, dependent on former laws, and all such Acts were invalid because of insufficient...