Louisville & N.R. Co. v. State

• Decision Date: 27 September 1913
• Citation: 159 S.W. 601,128 Tenn. 172
• Parties: LOUISVILLE & N. R. CO. v. STATE.
• Court: Tennessee Supreme Court

159 S.W. 601

128 Tenn. 172

LOUISVILLE & N. R. CO. v. STATE.

Supreme Court of Tennessee.

September 27, 1913

Appeal from Circuit Court, Blount County; S. C. Brown, Judge.

The Louisville & Nashville Railroad Company was convicted of a misdemeanor, and it appeals. Affirmed.

Thos N. Brown and Gamble & Crawford, all of Marysville, for plaintiff in error.

Walter W. Faw, Asst. Atty. Gen., for the State.

WILLIAMS J.

The appellant railroad company was found guilty of a misdemeanor under a presentment which charged a failure "to make and furnish a good and sufficient crossing" of a certain public highway "and to keep the same in lawful repair"; the insistence in behalf of the state being that the prosecution was under Acts 1889, c. 119, which imposes upon railroad companies, in the terms of the presentment, such duties in respect of public highway crossings.

The delinquency of the prosecuted company relied on in proof was in failing to keep in repair a bridge over a ravine alongside the track, which bridge, 16 feet high and 60 feet in length had been constructed by the company when, more than 10 years ago, it raised the grade of the track at that point. This bridge was kept in repair by the company for several years but later it, refused to continue doing so, on the ground that the bridge at its nearest point to the track was 40 feet distant therefrom, and therefore no part of the crossing.

The case, as made up in this court, turns on the validity of this insistence; it being a fact that the bridge was thus distant from the track.

The first contention is that Acts 1889, c. 119, was by implication repealed by the later act (Acts 1899, c. 356) which provides that railroad companies "shall be required to grade to a level with the rails of said railroad and to keep in repair every public road crossing such railroad for a distance of ten (10) feet on each side of said railroad track and between the rails thereof."

In Balden v. State, 122 Tenn. 705, 717, 127 S.W. 134 139, on a review of former decisions, it was said that repeals of statutes by implication are not favored, and that "the repugnance between the two statutes must be very plain and unavoidable. Both the terms and the necessary operation of the two acts must be incapable of reconciliation before the older act will be repealed by the later one. *** It is well settled that where the later statute does not cover or embrace all the provisions of the earlier one, and does not manifest a clear and unmistakable intention to provide and substitute a new system for the old, the provisions of the earlier act not clearly covered by the later one are unaffected and still in force, and the repeal operates only to the extent of the repugnance and conflict"--citing Cate v. State, 3 Sneed, 12...