Crockett County v. Walters

• Decision Date: 13 June 1936
• Parties: CROCKETT COUNTY et al. v. WALTERS, Commissioner, et al.
• Court: Tennessee Supreme Court

95 S.W.2d 305

170 Tenn. 337

CROCKETT COUNTY et al. v. WALTERS, Commissioner, et al.

Supreme Court of Tennessee.

June 13, 1936

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

Suit by Crockett County and others against H. S. Walters Commissioner of Highways, and others. From a decree for plaintiffs, defendants appeal.

Modified and, as modified, confirmed.

Roy H Beeler, Atty. Gen., and Edwin F. Hunt, Asst. Atty. Gen., for Commissioner Walters.

GREEN Chief Justice.

This suit was brought under the Declaratory Judgments Act (Code 1932, § 8835 et seq.) by Crockett county, a committee appointed by the quarterly county court of that county to bring suit, and by certain citizens and taxpayers of the county on behalf of themselves and for the county. The bill named as defendants the commissioner of highways, the comptroller, and the attorney general of the state, the county judge, the county trustee, the highway commissioners of Crockett county, and others not necessary to be enumerated.

It was alleged that the quarterly county court had passed a resolution directing that Crockett county's pro rata of the gasoline tax fund be expended by the state highway department on the highways of Crockett county under chapter 45 of the Pub.Acts 1931; that the county judge and other county officials denied the authority of said resolution, taking the position that chapter 45 of Pub.Acts 1931 was repealed by implication as to Crockett county by chapter 26 of the Private Acts of 1933 creating a highway commission for Crockett county, and that, under the provisions of the private act, the county authorities alone had the right to expend this fund.

The cause was brought to issue, proof taken, and on the hearing there was a decree for the complainants, from which the defendants have appealed. The bill sought a declaration upon several matters of controversy which appear to have been lost sight of, but the complainants took no exception to the chancellor's decree. The complainants not appealing nor assigning errors, we confine our consideration to the matters upon which the chancellor passed.

His honor ruled that the suit was maintainable by the parties bringing it; that chapter 26 of the Private Acts of 1933 was unconstitutional; that the quarterly county court of Crockett county by proper resolution directed the turning over of this county aid fund, pursuant to the provisions of chapter 45 of the Pub.Acts of 1931, to the state highway department to be expended on the county roads and bridges of said county; that the defendants county judge and county highway commissioners refused to obey said resolution; and the decree enjoined the county officers from expending any of the gasoline tax or county aid fund, and declared it the duty of those officials "to turn the same over to the State Highway Department, under the resolution of the county court, to be used and expended by the State Highway Department as provided by chapter 45 of the Public Acts of 1931."

The defendants' first contention is that complainants have no right to bring this suit. We do not find merit in this. There was a bona fide controversy between the county, as represented by the quarterly county court, and the defendant officials as to the constitutionality and effect of chapter 26 of the Private Acts of 1933; the controversy was real; and the parties had a real interest in the determination of the question. No more is necessary to make a case cognizable under the declaratory judgments statute. Miller v. Miller, 149 Tenn. 463, 261 S.W. 965. Likewise there were similar justiciable differences between individual complainants and the defendant officials, asserting the validity of chapter 26 of the Priv.Acts of 1933 as a whole, with reference to burdens imposed upon the individuals by that act. Some parties named both as complainants and defendants appear to be unnecessary, but there are real parties on either side and real controversies between them.

The validity of the resolution or resolutions of the quarterly county court in authorizing this suit is not directly assailed in this court. The proposition submitted by defendants' counsel in the language of their brief is:

"If that resolution is to be construed and interpreted as authorizing the bringing of this suit, then the Quarterly County Court was exceeding its authority and power, and acting illegally. The purpose of this suit, as expressed at great length in the bill, is not to turn the Gas Tax Fund of the County over to the State Highway Department to be expended as provided in chapter 45, Acts of 1931 (Code, § 3291 (1-2-3)). *** But the purpose of the suit, as set out, in many words, in the bill, was, and is, to turn the control and management of the expenditures of the County's road fund over to an arm or agency of the Federal Government. Such a course was not in contemplation when Code, § 3291 (3) was enacted. *** So we insist that the Quarterly County Court of Crockett County was without lawful power to authorize the prosecution of a suit, the purpose of which was to surrender the power of local self government and determination to an agency of the Government of the United States."

In respect to this, it may be observed that the chancellor sustained the suit only to the extent of declaring it to be the duty of defendant officials to turn the gasoline tax fund "over to the State Highway Department, under the resolution of the county court, to be used and expended by the State Highway Department as provided by chapter 45 of the Public Acts of 1931." Hereafter, if there is a diversion or misappropriation of this fund by the state highway department or others, such action may be challenged. No such question is before us on this appeal from the chancellor's decree.

The bill, as before mentioned, attacks chapter 26 of the Private Acts of 1933 as unconstitutional, and the chancellor so held. We consider this attack later. Both defendants and complainants, the latter if the act of 1933 be treated as constitutional, seem to agree that this act repealed by implication chapter 45 of the Pub.Acts of 1931 as to Crockett county. We are not, however, able to reach this conclusion.

No rule of statutory construction is more firmly established than that repeals by implication are not favored. This court has said that nothing short of an irreconcilable conflict between two statutes, by implication, works a repeal of the former by the latter. Stonega Coke, etc., Co., v. Southern Steel Co., 123 Tenn. 428, 131 S.W. 988, 31 L.R.A. (N.S.) 278.

Chapter 45 of the Pub.Acts of 1931, after providing the manner of distribution of the proceeds of the state gasoline tax among the various counties "to be used by the county highway authorities in the building, repairing and improvement of county roads and bridges," enacts "that the Quarterly County Court of any county of the State may, at any regular term by resolution passed by a majority of the Justices present and spread upon the minutes of the Court, direct the State Highway Department to expend said counties pro-rata of said fund on such county highways and bridges as the county highway department of said county by resolution may direct, and in such counties as have no highway department then the County Judge or Chairman may so direct." Section 3.

The provisions of chapter 26 of the Private Acts of 1933, thought to be in such irreconcilable conflict with the act of 1931 as to work a repeal by implication, are thus summarized in defendants' brief:

"Section 1: Provides for the creation of a Department of County Roads.

"Section 2: Provides for a Road Commission of three members, to be elected by the qualified voters of the County.

"Section 9: Provides-'That the County Road Commission aforesaid is hereby given general power, control and authority over all County Roads, bridges and culverts in said County and for their construction and repair, said County Road Commission shall have exclusive power and authority to make expenditures of County Road Funds or Road Money.'

"Section 17: Provides 'That any and all monies, taxes, privileges, fines, forfeitures, fees and other revenue of every kind belonging to the County Road Fund of said counties, including any and all monies, and revenue received from the State, from a gasoline tax or other tax, and commutation money shall be paid into the hands of the County Trustee of said counties and by him placed to the credit of the County Road Account. *** And shall only be drawn out of said account upon a road warrant properly signed by the Chairman of the County Court or County Judge of said County. And all expenditures authorized and to be paid under this Act shall be made and paid by a road warrant drawn on and against and payable solely out of the road funds of said County and shall so show upon the face of the road warrant, and directed to the County Trustee of said County."'

We are unable to follow the argument. We think the two acts must be construed in pari materia (City of Nashville v. Dad's Auto Accessories, 154 Tenn. 194, 285 S.W. 52; Faulkner v. Nashville, 154 Tenn. 145, 285 S.W. 39; Howard & Herrin v. Nashville, C. & St. L. Ry. Co., 153 Tenn. 649, 284 S.W. 894, 46 A.L.R. 1530), and with other county road acts.

When chapter 45 of the Pub.Acts of 1931 was enacted, road commissions created by private acts existed in a large proportion of the counties of the state. The powers conferred upon such county commissions by the various acts were substantially as broad as the powers conferred upon the Crockett county commission by chapter 26 of the Priv.Acts of 1933. The act of 1931 contemplated that these county commissions would handle the county aid funds derived from...