Galoway v. State

• Decision Date: 23 March 1918
• Citation: 202 S.W. 76
• Parties: GALOWAY v. STATE.
• Court: Tennessee Supreme Court

Page 76

202 S.W. 76

GALOWAY v. STATE.

Supreme Court of Tennessee.

March 23, 1918.

Error to Circuit Court, Marshall County; W. B. Turner, Judge.

Rollie Galoway was convicted for failure and refusal to furnish a wagon and team for work on a public road, and he brings error. Affirmed.

R. E. Haynes, of Lewisburg, for plaintiff in error. The Attorney General and Armstrong, Armstrong & Marshall, of Lewisburg, for the State.

WILLIAMS, J.

The plaintiff in error was convicted on an indictment which charged that he willfully failed and refused to furnish a wagon and team for work on a public road, after having been legally notified and warned to do so.

The road law for Marshall county is Private Acts 1915, c. 564. Section 20 of the act provides that any person owning a wagon and team shall be required to furnish same the full number of days required to work a district road; and it is further stipulated that the owner of said wagon and teams shall furnish the necessary feed for each team. A fine is provided to be imposed for a violation. It is said in argument that similar provisions are to be found in statutes applying to other populous counties, such as Maury, Giles, Sumner, Lincoln, and Madison.

In behalf of Galoway it is assigned for error that the above statutory requirements are violative of article 1, section 8, of the Constitution of 1870, and also of article 1, section 21, of the fundamental law.

The case chiefly relied upon by plaintiff in error is Toone v. Alabama, 178 Ala. 70, 59 South. 665, 42 L. R. A. (N. S.) 1045, which holds that subjecting animals and implements suitable for road work in the county to that duty a certain number of days each year violates a constitutional provision forbidding the taking or applying to public use of private property without just compensation. This appears to be the only reported case that rules the point. We are not satisfied with the reasoning of, or the result reached by, the Alabama court, so far as its decision relates to wagons and teams sought to be made temporarily subject to road service.

The court in that case draws a distinction between the labor of an individual and the service of his animals and implements in that regard, thus:

"The books have been examined in vain for an authority which will authorize the exaction from a citizen of the contribution of his property for public service, under the theory that it is his duty as a citizen to so contribute. The state may exact the performance of this personal obligation, or provide a reasonable commutation for same by way of an assessment; but it cannot confiscate his property by devoting it to public use."

We are of opinion that the distinction was not well made. There was left out of view the legal history of the road duties imposed upon landowners, in the light of which history the constitutional provision should be read.

1. As to the conscription of wagons and teams of appellant:

"Trinoda necessitis," meaning the threefold necessary public duties, viz. repairing bridges, maintaining castles or garrisons, and going on expeditions to repel invasions, phrased the burden to which all owners of lands were held liable by the Saxon law. Black, L. Dict. and 38 Cyc. 1994.

Recently the Supreme Court of the United States had under review a statute of Florida which required every able-bodied male person over the age of 21 years, and under the age of 45 years, to work on the roads and bridges of the county, and that court made this reference to the rule of the ancient law of the Saxons in England:

"In view of ancient usage and the unanimity of judicial opinion, it must be taken as settled that, unless restrained by some constitutional limitation, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation. This is a part of the duty which he owes to the public. The law of England is thus declared in Blackstone's Commentaries, bk. 1, page 357:

"`Every parish is bound of common right to keep the highroads that go through it in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man's estate was subject, viz. expeditio contra hostem, arcium constructio, et pontium reparatio. For, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, with respect to the construction and repairing of ways and bridges no class of men of whatever rank or dignity should be exempted.'" Butler v. Perry, 240 U. S. 328, 36 Sup. Ct. 258. 60 L. Ed. 672.

To quote further from Blackstone (page 358) is to demonstrate that upon local authorities were devolved the following duties:

"They are to call together all inhabitants and occupiers of lands, tenements and hereditaments within the parish, six days in every year to labor in fetching materials, or repairing the highways; all persons keeping draughts (of three horses, etc.), or occupying lands, being obliged to send a team for every draught, etc."

There was, as thus seen, from early times laws requiring the use of teams along with the personal services of the one subject to labor. The court in Butler v. Perry, supra, partially traced this feature along with that of the conscription of personal service in early colonial and territorial statutes, noting that the legislative body of the Northwest Territory in 1792 provided for the warning in of inhabitants to work on the highways, every such one to repair to the place appointed "with such utensils and tools as may be ordered him wherewith he is to labor, etc." A like provision is to be found in the early legislation of our mother state, North Carolina. Laws N. C. 1784, c. 14. Shortly after the admission of this state into the Union, it was by Acts 1804, c. 1, § 8, provided that the overseer of roads should notify all owners of slaves to send their male servants from 15 to 50 years of age to work the roads; and, by section 10, to give notice to owners what kind of tools they should "bring and work with" on the roads. It would seem that to impress human chattels was, if not a greater, then not a less, exertion of power than is the impressment of live stock.

Generally, and in this state, it is held that the police power may justify a municipality's requiring landowners to construct, at their own expense, sidewalks in front of their lots. Franklin v. Maberry, 6 Humph. (25 Tenn.) 368, 44 Am. Dec. 315, and cases in accord; note 28 L. R. A. (N. S.) 1132. The burden incident thereto is appreciably greater...