Pharr v. Nashville, C. & St. L. Ry.

• Decision Date: 28 February 1948
• Parties: PHARR et al. v. NASHVILLE, C. & ST. L. RY.
• Court: Tennessee Supreme Court

208 S.W.2d 1013

186 Tenn. 154

PHARR et al. v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Tennessee.

February 28, 1948

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Certiorari proceeding by Nashville, Chattanooga & St. Louis Railway to review action of Railroad and Public Utilities Commission ordering abandonment by railroad of a 'team track' in the City of Paris, Tennessee, and requiring it to be located elsewhere, on a complaint made before it by Samuel S. Pharr and others, citizens of Paris, Tennessee, on ground that such 'team track' was a nuisance. To review a judgment sustaining the petition and voiding order of the Commission Samuel S. Pharr and others bring error.

Affirmed.

Frank G. Clement and Leon Jourolmon, Jr., both of Nashville, for plaintiff in error R. R. & Public Utilities Commission.

Dudley Porter, Sr., of Paris, for plaintiffs in error Clinton A Mathews et al.

William H. Swiggart, Edwin F. Hunt, David M. Keeble and Walker & Hooker, all of Nashville and James W. Van Dyke, of Paris, for defendant in error.

NEIL Chief Justice.

The sole question for our determination on this appeal involves the authority of the Railroad & Public Utilities Commission of the State to order the abandonment by the Nashville Chattanooga & St. Louis Railway of a 'team track' in the City of Paris, Tennessee, and requiring it to be located elsewhere.

The Commission claims to have exercised its authority by virtue of Code, §§ 5449 and 5450 and Chapter 130 of the Public Acts of 1939. We will refer to the parties, Railroad & Public Utilities Commission as the 'Commission,' and the Nashville, Chattanooga & St. Louis Railway as the 'Railway' company.

The Railway company, in denying the authority of the Commission to make such an order, insists that Chapter 130 of the Acts of 1939 is unconstitutional; but if held to be constitutional it confers no authority to justify the action of the Commission.

The circumstances giving rise to the present controversy can be briefly stated. In 1942 the Railway built what is called the 'Dunlap Team Track,' which is a spur track, in the suburbs of Paris and in close proximity to a residential section. It is called a 'team track' to designate it as a convenient track for the loading and unloading from and to wagons and other vehicles without having to drive to the terminals of the company.

Complaint was formally made before the Commission by three citizens of Paris that this 'team track' was a nuisance by reason of loud noises emanating from it; that it was detrimental to the public health in that there were no toilet facilities for employees, and was also a hazard to the traveling public. There was a formal hearing by the Commission upon the complaint, the Railway appearing by counsel and making denial of each and every charge. It interposed the further defense that the Commission was without any legal authority to order the removal of its said 'team track' to some other place. Following the entry of the order of removal complained of the Railway filed its petition for certiorari in the Third Circuit Court of Davidson County seeking a review of the action of the Commission and praying that the order be set aside and for nothing held.

There was a hearing on the petition and answer of the Commission, the three citizens of Paris, and the record as certified, also on a stipulation of facts. The trial judge sustained the petition and entered a judgment voiding the order of the Commission. The Commission, and the citizens who made the original complaint, have appealed and assigned errors which raise the questions stated in the outset of this opinion.

The Act of the Legislature here assailed as invalid is an amendment to Code, §§ 5449, 5450. Contention is made that the Act is in violation of Article 2, Section 17 of the Constitution of Tennessee, 'in that the contents of said Act were not adequately described in the caption thereof.' The appellants contend that the trial judge was in error in sustaining the Railway in this regard. The caption of the amendatory Act is as follows: 'An Act to amend the Code of Tennessee, Section 5449 and Section 5450.'

The body of the Act provides:

"5449. However, none of the provisions of this statute following and none of the powers conferred upon the Commission shall apply to any railroad, whether operated by an incorporated company or individual, which is operated in this State and which is regulated and governed by the provisions of Section 5380-5447, except it is specifically provided that the Railroad and Public Utilities Commission shall have the power and authority to inspect the conditions existing on trains or along the rights-of-way, yards and terminals of all commercial railroads, interurban railroads and street railroads, to the end that safety, health and comfort of the general public and employees may be preserved and that dangerous or unhealthy conditions on trains or along the rights-of-way, yards and terminals, if found to exist, may be abated and removed by the order of the Commission.

"The Commission, on its own motion or on the petition of any citizen, shall have a hearing on the question embraced within this section, as to the presence of dangerous or unhealthy conditions of trains or along the right-of-way, yards and terminals of all commercial railroads and street railroads.

"It shall be the duty of the Commission, after the hearing, to order the abatement and removal of any dangerous or unhealthy condition, if found to exist, and to order improvements to be made remedying same, when such conditions are shown to be dangerous to the health and safety of the general public or the employees."

We are constrained to disagree with the learned trial judge as to the invalidity of the Act. This is not a case of the Legislature adopting an amendment to a statute that is not a part of the official Code; but one amending a section of the Code that was formally adopted by an Act of the Legislature. When any section of the official Code is amended the members of the Legislature are presumed to know the nature of the section sought to be amended. No question is made in the instant case that the amendatory Act is not germane to sections of the Code referred to.

In Dykes v. Hamilton County, 183 Tenn. 71, 191 S.W.2d 155, 156, it was held: 'The Legislature is under same obligation to observe Constitution as courts, and presumption arises that Legislature intended to pass a constitutional statute.'

This question has been considered in many of our cases and the ruling has been contrary to the Railway's contention.

In State v. Runnels, 92 Tenn. 320, 325, 21 S.W. 665, the caption of the Act was 'An Act to amend Section 4652, Subsection 16 of the Code of Tennessee.' Acts 1889, c. 161. There is nothing here to give notice of what was in the body of the Act. The Court held it constitutional.

In Basham v. Southeastern, etc., 184 Tenn. 532, 201 S.W.2d 678, 680, it was insisted that the caption of the Act assailed 'fails to cite the title or substance of the law it seeks to amend.' The caption read, 'An Act to amend Section 6856 of the Official Code of the State of Tennessee.' Pub.Acts 1943, c. 120. In response the Court said:

'That an Act which fails to comply with this constitutional requirement is invalid needs no argument, but it is well settled that a reference in the caption to the section of the Code of Tennessee proposed to be amended is sufficient to comply with the requirements of Section 17, Article 2, of the Constitution. State v. Runnels, 92 Tenn. 320, 21 S.W. 665; Gamble v. State, 159 Tenn. 446, 19 S.W.2d 279; Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 659.

The Code of 1932 is now the 'Official Code of the State of Tennessee.'

'Counsel argue at length, and earnestly, that such a reference is uninforming and fails to satisfy the purpose of the requirement, but this specific question has been too long settled to admit of further debate.'

The next contention of appellants is that there was material evidence to support the order of the Commission and that Chapter 130 of the Public Acts of 1939 was 'sufficiently broad to grant the Commission the power which it attempted to exercise.' The trial judge overruled this contention and the Commission assigned it as error.

In deciding the question here presented we concede that there is some material evidence to support the complaint made before the Commission by the three citizens of Paris who are parties to this proceeding. The evidence purports to show that the 'team track' constituted a nuisance in that citizens were disturbed by loud noises, lack of toilet facilities for employees of the Railway and others, and dangerous to those who crossed the track at a particular grade crossing.

We find from the record that this...