Jackson County v. McGlasson

• Decision Date: 31 March 1934
• Parties: JACKSON COUNTY et al. v. McGLASSON.
• Court: Tennessee Supreme Court

69 S.W.2d 887

JACKSON COUNTY et al. v. McGLASSON.

Supreme Court of Tennessee.

March 31, 1934.

Appeal in error from Circuit Court, Jackson County; O. K. Holliday, Judge.

Condemnation suit by Jackson County against G. Lee McGlasson, wherein the state subsequently became a party. From a judgment primarily against the state and secondarily against the county for the damages assessed, the state appeals.

Affirmed.

Roy H. Beeler, Atty. Gen., P. J. Anderson, of Gainesboro, O. L. Peeler, of Camden, W. C. Cook, of Dickson, and John L. Neely, of Nashville, for the State.

Bailey C. Butler, of Gainesboro, for defendant in error.

COOK, Justice.

This appeal presents another phase of the controversy over the application and effect of chapter 57, Pub. Acts of 1931. The Legislature enacted the statute for the purpose of relieving the counties of the statutory imposed burden of paying for rights of way for state highways. By this act, the Legislature transferred the obligation from the counties to the state. No constitutional restraint prohibited the assumption of the obligation by the state. Baker v. Hickman County, 164 Tenn. 305, 47 S.W.(2d) 1090.

The state insists that the judgment rendered in this case, primarily against the state and secondarily against the county, for the land taken for the state highway should be reversed because:

(1) The Legislature did not, by any provision of chapter 57 of the Act of 1931, waive the state's immunity and therefore it could not be sued.

(2) The Legislature did not require the state to become a party to pending condemnation suits, hence it could not be made a party by order of the court.

(3) The state having pleaded its immunity under section 8634 of the Code of 1932 (Const. art. 1, § 17), the circuit court of Jackson county had no jurisdiction and could not render judgment against the state under the construction given the act in Phillips v. Marion County (Tenn. Sup.) 59 S.W.(2d) 507.

The state located and subsequently constructed a state highway over the lands of the defendant, McGlasson, in Jackson county. It was necessary to condemn the right of way. It was assumed by the state highway department and the county authorities that the Legislature, by chapter 74, Pub. Acts of 1917, chapter 149, Pub. Acts of 1919 (Liles v. Creveling, 151 Tenn. 61, 268 S. W. 625), imposed the obligation upon counties to procure rights of way for state highways. In conformity with that view the chairman of the county court of Jackson county filed condemnation suits to appropriate for the use of the state highway the lands required in Jackson county. Proceedings were instituted against the defendant, McGlasson, as well as against fifteen other landowners. In the McGlasson case a jury of inquest was appointed, assessed the value of the land and incidental damages at $3,500, and reported their verdict. In conformity with the statute, Shannon's Code, § 1861, Code, § 3126, McGlasson appealed to the circuit court and asked for a trial de novo. That was the status of the case when, at the July term, 1931, the Attorney General for the state appeared and joined in an order which was entered on the minutes of the court and which reads as follows:

"Now come the respective parties in each of the above entitled causes, by and through their attorneys of record, including the attorneys for Jackson County and John L. Neely and J. M. Gardenhire, Assistant Attorneys General of the State, and hereby enter the following agreement and stipulation:

"1. It is hereby mutually agreed that each and all of the above entitled cases are by agreement continued until the next term of the court.

"2. The State of Tennessee, through its Assistant Attorneys General, does not concede liability in any of said cases but it is hereby mutually agreed that the State waives service of process in each of said cases and may be substituted as parties defendants, or plaintiff, as the case may be, if the law requires such action, and it is further stipulated and agreed that if there is legal liability on the part of the State that the same will be assumed and paid under the Acts of 1931, same being chapter 57 of the Public Acts of 1931, provided, always, that said act of the Legislature is valid, constitutional and binding upon the State of Tennessee.

"3. It is hereby mutually agreed and stipulated that none of the rights of these parties to these suits, either plaintiff or defendant, or the county or the State of Tennessee, shall be in any wise prejudiced or embarrassed by reason of this stipulation."

By this agreement the state became a party to the several causes styled in the caption to the order, all of which had been brought by Jackson county to condemn rights of way for the state highway department. At that time the case of Baker v. Donegan, 164 Tenn. 625, 47 S.W.(2d) 1095, 52 S.W.(2d) 152, was pending and in that case the state was challenging the validity of chapter 57, Pub. Acts of 1931, hence the reservation in paragraph 2 of the agreed order. The Act of 1931 was held valid in Baker v. Donegan, and in Brown's Heirs v. Cannon County, 165 Tenn. 554, 56 S. W.(2d) 735, was held to transfer the primary liability for the expense of acquiring rights of way from the counties to the state.

In Phillips v. Marion County, supra, it was said that the procedure, or the administrative measures, necessary to protect the state by ascertaining its reasonable liability for such rights of way were left by the Legislature to the discretion of the department of highways and public works. That being so, it seems that the department of highways and public works, out of whose funds the liability assumed by the state was "to be paid as other highway expenses are paid," could refuse to let the state become a party to pending suits and wait until the state's liability became fixed by a judgment in the condemnation proceedings commenced by the county for the benefit of the state, and could even resist payment until commanded by mandamus; or, on the other hand, the department of highways and public works could, in the name of the state, acting...