Heiskell v. Knox County

• Decision Date: 05 June 1915
• Citation: 177 S.W. 483,132 Tenn. 180
• Parties: HEISKELL v. KNOX COUNTY ET AL.
• Court: Tennessee Supreme Court

177 S.W. 483

132 Tenn. 180

HEISKELL v. KNOX COUNTY ET AL.

Supreme Court of Tennessee.

June 5, 1915

Appeal from Chancery Court, Knox County; R. H. Sansom, Special Chancellor.

Suit by S. G. Heiskell against Knox County and others. From a decree dismissing the bill, complainant appeals. Affirmed.

Noble Smithson, of Knoxville, for appellant.

Shields & Cates and Johnson & Cox, all of Knoxville, for appellee Knox County.

Maynard & Lee and Webb & Baker, all of Knoxville, for appellee University of Tennessee.

FANCHER J.

It appearing to the court that the public interest requires it this case was advanced for hearing and was heard at Jackson on May 31, 1915, as provided by law, upon the transcript of the record from Knox county chancery court, the assignments of error by appellant, reply brief thereto, and the oral argument.

It appears that defendants T. A. Wright and others were the owners of a tract of land near Knoxville, known as the Cherokee tract, and the quarterly court of Knox county, on the first Monday in January, 1915, adopted a resolution upon a proposition made to it by the owners to buy said land, and that the title thereto should be conveyed to the state of Tennessee for the use of the University of Tennessee.

It further appears that the Legislature of this state passed an act at its recent session, being chapter 1, authorizing Knox county to purchase said property for agricultural experimental, and educational purposes, to be held by the state for the use of the University of Tennessee at Knoxville, and to authorize the county court of said county to issue and sell coupon bonds in an amount not to exceed $125,000 to pay for same, and to provide for the redemption of said bonds.

On March 23, 1915, this bill was filed by S. G. Heiskell on behalf of himself and all other taxpayers of Knox county praying an injunction against the sale of said bonds, to which bill Knox county, and R. A. Brown, as county judge thereof, together with the owners of said Cherokee tract of land, were made defendants.

The bill of complainant contains a number of allegations, in which the act of the Legislature authorizing the sale of this property is attacked on various grounds, and questions are also made as to the right of the county to purchase property of this nature for the purposes proposed, and also averring that the said land is not worth the price proposed to be paid for it; that complainant believes and alleges that the county is being burdened with $50,000 more than the land is really worth, this sum being added to the real value of the land as a bonus or profit to some of the promoters. The questions raised as to the act of the Legislature authorizing the sale relate to the constitutionality of the act.

Demurrers were interposed to the bill by the defendants. They also answered the bill on March 29, 1915. On April 7, 1915, the chancellor sustained all the demurrers and dismissed the bill, and complainant, Heiskell, appealed in error to this court. Only three of the questions raised in the original bill are now insisted upon in the assignments of error. We will now take up these three propositions.

The first assignment of error is upon the question raised in the bill in section 5 thereof, and is based on article 2, § 18, of the Constitution of Tennessee. This section of the bill alleges that the act authorizing the purchase of the property and providing for the issuance of bonds for that purpose was not read once on three different days and passed each time in the House, where it originated, before it was transmitted to the other house, and that the bill was never read and passed on three different days in each house of the Legislature; that said act did not receive the assent of the majority of all the members to which each house was entitled under the Constitution, as required by section 18, art. 2.

This part of the bill was demurred to by Knox county, R. A. Brown, county judge, and Jesse L. Henson, county court clerk, specially on the ground that the journals of the Senate and House of Representatives (of which the court will take judicial notice) show that said act was duly, legally, and constitutionally passed.

Certified copies of the journals of the Senate and House of Representatives were exhibited with the demurrer on the trial of the cause, and certified copies are filed with this court as a part of the brief.

It is said by complainant that the demurrer admitted the truth of this allegation, and the position is taken that the averments of the bill cannot be put in question upon the demurrer.

Article 2, § 21, of our Constitution provides that each house shall keep a journal of its proceedings; the ayes and noes shall be taken in each house upon the final passage of each bill of a general character and bills making appropriations of public moneys.

It is provided by section 5584, Shannon's Code of Tennessee, that the proceedings of the Legislature are proved by the journals.

This court has held in State v. Swiggart, 118 Tenn. 556, 102 S.W. 75, that the court will take judicial notice of the journals of the General Assembly showing the various steps taken in the enactment of statutes, and that these need not be specially pleaded or proved if a statute is attacked for want of formalities in its enactment required by the Constitution. It was held that every reasonable presumption will be made in favor of the regularity and validity of the proceedings of the General Assembly as a co-ordinate branch of the government.

It was unnecessary to file copies of these entries from the journals of the House and Senate except to call the court's attention thereto. Can the court take notice of these proceedings upon a demurrer, in the face of a direct charge in the bill that such proceedings were not regular as required by the Constitution? Or is it required that litigants and the courts must wait until an answer is filed and an issue of fact raised upon the question before the court may judicially note these proceedings? We think not. It seems clear that there is no necessity that pleadings make an issue in order for the court to take notice of these journal entries, but the court will take notice of such proceedings, as it always takes notice of any statute of the General Assembly.

It is true that the demurrer admits the truth of facts charged in the bill. But this confession for the purpose of hearing the demurrer is strictly confined to the facts. The demurrer does not admit matters of law suggested in the bill or inferred from the facts stated, nor does it admit the arguments, deductions, inferences, or conclusions set forth in the bill. It does not admit allegations contrary to the facts judicially known to the court. Gibson's Suits in Chancery (2d Ed.) § 304; 1 Daniel's Chancery Practice, 545, 546. It is said by Mr. Daniel, on page 546 of said volume:

"When facts are averred in the bill which are contrary to any fact of which the court takes judicial notice, the court will not pay any attention to the averment. Thus where in order to prevent a demurrer it was falsely alleged in the bill that a revolted colony of Spain had been recognized by Great Britain as an independent state, Sir Lancelot Shadwell, V. C., upon the argument of a demurrer to the bill, held that the fact averred was one which the court was bound to take notice of as being false, and that he must therefore take it just as if there had been no such averment in the record."

We hold...