Davidson County v. Harmon

• Citation: 200 Tenn. 575,4 McCanless 575,292 S.W.2d 777
• Parties: , 200 Tenn. 575 DAVIDSON COUNTY, Tennessee, etc. et al., ex rel. v. D. A. HARMON, d/b/a Harmon Construction Company et al.
• Decision Date: 20 July 1956
• Court: Supreme Court of Tennessee

Page 777

292 S.W.2d 777

4 McCanless 575, 200 Tenn. 575

DAVIDSON COUNTY, Tennessee, etc. et al., ex rel. v. D. A. HARMON, d/b/a Harmon Construction Company et al.

Supreme Court of Tennessee.

July 20, 1956.

Elmer Davies, Jr., County Atty., Nashville, for appellant.

Allison B. Humphreys, Solicitor Gen., Nat Tipton, Advocate Gen., Nashville, and Milton P. Rice, Asst. Atty. Gen., for appellees.

BURNETT, Justice.

The question presented by this suit is whether or not the County may enforce its zoning ordinance against the State in the construction of a building to be used as a receiving and treatment center in connection with the Central State Hospital, located on the Murfreesboro Pike in Davidson County.

The bill was filed by the County, its Building Commissioner, and County Attorney against the contracting company who was constructing a building at the Central State Hospital; Frank G. Clement, Governor of the State of Tennessee; and Dr. Cyril J. Ruilman, Commissioner of Mental Health of the State of Tennessee. The bill alleges that these parties by virtue of Chapter 297 of the Public Acts of Tennessee, for the year 1955, were constructing a building at the Central State Hospital, located on Murfreesboro Pike in Davidson County, to be used as a receiving and treatment center for said hospital which building violated the zoning code of Davidson County in that the building to be erected was 33 feet 11 1/4 inches higher than the 40 feet maximum allowed in an agricultural district where the building was to be placed; that the building was to be five stories in height, where 2 1/2 stories were the maximum as allowed under the building code for a district of the kind; and that the building was being constructed within less than 4,000 feet of and in a direct line with the northwest and southeast runway of the Nashville Municipal Airport, thus creating a continuing hazard to passengers in air transportation and to prospective patients of said State institution in violation of Section 17, Subsection 3, of the Zoning regulations applying to Davidson County. These Zoning regulations were established by the Quarterly County Court of Davidson County pursuant to authority given them by Chapter 473 of the Private Acts of 1939.

The bill also states that the agents of the State of Tennessee had applied for a certificate for this construction and upon being denied it had appealed and the Davidson County Board of Zoning Appeals had likewise denied them a certificate for this construction and that the building was proceeding to plan in violation of the Zoning requirements of the County.

The bill was demurred to on four grounds to-wit: (1) that Frank G. Clement is sued as Governor and as such he is immune from suit; (2) that construction is pursuant to Chapter 297 of the Public Acts of the General Assembly of Tennessee, 1955 and that thus is within the sovereign authority of the State of Tennessee and not controlled by nor subject to the private and public acts made the basis of complainants' suit; (3) that the Construction Company is a contractor working on behalf of the State of Tennessee and in doing so is protected by the sovereign rights of the State, and (4) that it appears from the bill that the complainants had knowledge of this construction some months prior to the filing of the bill and the bill is demurred to because of laches.

The Chancellor sustained the demurrer in toto and dismissed the bill. The complainants, appellants here, have seasonably perfected their appeal. Assignments of error and able briefs have been filed by both sides and we have heard argument thereon. We now, after giving the matter considerable thought and study, have the suit for disposition.

We will not take up the numerous assignments seriatim because we feel that they can all be answered more simply by the conclusions that we have reached which will hereinafter be stated.

The statutes of the State impose upon the Department of Mental Health the duty of providing care for the mentally ill. This duty contemplates the construction of institutional buildings as the need arises. Section 4-321, T.C.A. Recognizing the need for new buildings the Legislature of the General Assembly of 1955 passed Chapter 297 of the Public Acts of that year which according to the allegations of the bill required:

'The Governor and Commissioner of Mental Health are authorized to employ architects, to advertise for bids, and to let contracts for improvements and additions in connection with the Central State Hospital located on Murfreesboro Pike in Davidson County, Tennessee.'

In the carrying out of this requirement of the Legislature to build these buildings it is necessary that the buildings be where the Central State Hospital is now located. Section 33-601, T.C.A.

Acting pursuant to these statutes and general acts early in 1955 the authorized officers of the State commenced the construction of a building for the purpose of a treatment center at the Central State Hospital. On August 25, 1955, the County was notified of this and were advised by an inspection of the premises that the buildings were to proceed at a great cost. This suit was commenced on March 6, 1956 or some months after the County authorities were advised of this fact.

The only relief sought by the original bill was an immediate injunction, to make permanent upon the hearing, enjoining the construction of the building as being contrary to the ordinance or resolution No. 53, adopted pursuant to Chapter 473 of the Private Acts of 1939, applying to Davidson County. In addition to demurring to the bill the State filed a sworn answer for the avowed purpose of controverting an allegation of the original bill that the construction of the building created a continuing hazard to passengers in air transportation and prospective patients of Central State Hospital. The Chancellor treated this sworn bill as an affidavit in his consideration of whether or not a temporary injunction should be granted.

Chapter 473 of the Private Acts of 1939 which is the basis of this lawsuit, does not, by express language or by necessary implication apply to the State of Tennessee. Upon a careful reading of this Act it is rather plain to us that many provisions of the Act imply a contrary intention. When we know as a matter of fact that the Capitol of the State government is located in Davidson County this within itself would make it more necessary for this private zoning law to expressly include its application to the State buildings, etc., if the Act were to apply to any acts the State attempted to do. It is inconceivable that the General Assembly ever intended such provision to apply to the State of Tennessee.

Under the Act the District Attorney General shall proceed to prevent violation of regulations adopted under the Act, for necessary actions at law or equity. Under the Constitution and the system of government under which we operate, the District Attorney General is a representative of the State of Tennessee. Thus it seems to us very obvious from this provision alone, aside from many others, that it is inconceivable to think that the Legislature intended for this Private Act to apply to the State since the District Attorney General represents the State of Tennessee and would be authorized under the Act to proceed against the very one that he represented. And again there is a provision in the Act which requires that a regional planning commission, which by law is created by the State Planning Commission, shall certify to the Quaterly County Court a zoning plan from which the Quarterly County Court must adopt as zoning plan for the County. The provision for the origination of the zoning plan by an agency which is created in the first instance by a State agency is another illustration of the very evident fact that it was never expected that the Private Act and the resolutions adopted thereunder would ever be applied to the State or its property in the County.

The sovereign (State of Tennessee) is not bound by a statute unless it be expressly stated in the statute that the sovereign is to be bound. All the cases, insofar as we can determine, are to this effect. Keith v. Funding Board, 127 Tenn. 441, 464, 155 S.W. 142, Ann.Cas.1914B, 1145; Mayor & Aldermen of Morristown v. Hamblen County, 136 Tenn. 242, 246, 188 S.W. 796; Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953; Automobile Sales Co. v. Johnson, 174 Tenn. 38, 122 S.W.2d 453, 120 A.L.R. 370, and American Can Co. v. McCanless, 183 Tenn. 491, 501, 193 S.W.2d 86. In the Keith v. Funding Board, supra [127 Tenn. 441, 155 S.W. 148], the Court said, among other things:

'We recognize the rule of construction that leaves the sovereign not included in, but, so to speak, withdrawn from, the general language of a statute or Constitution, unless specifically mentioned.'

This rule is recognized as far back in this State, as State v. Crutcher's Adm'r, 32 Tenn. 504, at page 509, where the Court there quoted from Mr. Justice Story to this effect:

'where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischief to be redressed, or the language...