Rhinehart v. State

• Decision Date: 20 January 1908
• Citation: 117 S.W. 508,121 Tenn. 420
• Parties: RHINEHART v. STATE.
• Court: Tennessee Supreme Court

117 S.W. 508

121 Tenn. 420

RHINEHART v. STATE.

Supreme Court of Tennessee.

January 20, 1908

Appeal from Circuit Court, Davidson County; Lytton Taylor, Special Judge.

Action by the State against Marcellus Rhinehart to recover a penalty for refusal of defendant to appear as a witness. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Dancey Fort and H. N. Leech, for appellant.

Charles T. Cates, Jr., Atty. Gen., Jon J. Vertrees, W. O. Vertrees Thos. H. Malone, Jr., and Austin Peay, for the State.

SHIELDS J.

This is an action, begun by motion in the circuit court of Davidson county, to recover of the plaintiff in error, a citizen of Montgomery county, a penalty of $250 for willfully refusing and failing to appear before the Insurance Commissioner of Tennessee at his office in the Capitol at Nashville, in Davidson county, to testify and give evidence in an investigation then being conducted by the commissioner concerning the cause, origin, and circumstances of the burning of the storehouse of W. E. Wall & Son in Montgomery county, under what is known as the "Fire Marshal Law," being chapter 460, p. 1538, of the Acts of 1907, in obedience to a subp na issued by T. Leigh Thompson Deputy Insurance Commissioner, to the sheriff of Montgomery county, for the plaintiff in error, and there served upon him.

The defenses of the plaintiff in error involve the constitutionality and the construction of the statute under which the commissioner was proceeding, and we here state it in full:

"An act to reduce the fire waste in Tennessee by providing for the investigation of fires, and to provide for the expense of such investigations.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that the Insurance Commissioner and the sheriff are hereby authorized to investigate the cause, origin and circumstance of every fire occurring in the state by which property has been destroyed or damaged, and shall specially make investigation as to whether such fire was the result of carelessness or design. Whenever such fires occur it shall be the duty of the sheriff to notify the Insurance Commissioner as early as practicable thereafter of the occurrence of such fire. It shall be a sufficient compliance with the requirement to send said notice as aforesaid by registered mail, addressed to the Insurance Commissioner at Nashville.

"A preliminary investigation of all fires shall be made by the sheriff, and shall be begun within three days thereafter, and, if not, then as soon as practicable after he has such information and the Insurance Commissioner shall have the right to supervise and direct such investigation whenever he deems it necessary or expedient. The officer making such investigation of fires shall, within one week of the occurrence of the fire (if the preliminary investigation can be concluded in that time, if not, then as soon thereafter as such investigation is concluded), furnish to the said Insurance Commissioner a written statement of all of the facts relating to the cause and origin of the fire, the kind and ownership of the property destroyed and such other information as may be called for by the blanks provided by the Insurance Commissioner. The Insurance Commissioner shall keep in his office a record of all fires occurring in the state, together with all facts, statistics and circumstances, including the origin of the fires, which may be developed by the investigations provided for by this act.

"Sec. 2. Be it further enacted, that the Insurance Commissioner shall have power, and it shall be his duty, either in person or by deputy or by the officers provided in section 1 of this act, to examine or cause examination to be made, into the cause, circumstances and origin of all fires occurring within the state to which his attention has been called in accordance with the provisions of section 1, or otherwise, by which property is accidentally or unlawfully destroyed or damaged by fire, and to especially examine and decide whether said fire was the result of carelessness or was the act of an incendiary. The Insurance Commissioner shall, in person, by deputy or by an officer named for the purpose in section 1 herein, fully investigate all the circumstances surrounding such fire, and when, in the opinion of the officers making the investigation, such proceedings are necessary, take, or cause to be taken, the testimony on oath of all persons supposed to be cognizant of any of the facts or to have means of knowledge in relation to the matters as to which an examination is hereby required to be made, and shall cause same to be reduced to writing. If the Insurance Commissioner shall be of the opinion that there is evidence sufficient to charge any person with the crime of arson or other willful burning, he shall cause such person to be arrested and charged with such offense prosecuted and bound over to the circuit or criminal court of the county where such fire occurred, and shall furnish to the Attorney General of the district all such evidence, together with the names of the witnesses, and all information obtained by him, including a copy of all pertinent and material testimony taken in the case.

"Sec. 3. Be it further enacted, that when conducting an examination or investigation provided for in this act, the Insurance Commissioner, or his deputy, or any other officer authorized by this act to conduct such investigation, shall have all the power of a trial justice in this state for the purpose of summoning and compelling attendance of witnesses to testify in relation to any matter which is by the provisions of this act a subject of inquiry and investigation, and may administer oaths and affirmations to persons appearing as witnesses before them; and false swearing by any witness in any manner or proceeding aforesaid shall be deemed perjury and punished as such.

"Sec. 4. Be it further enacted, that the Insurance Commissioner, or his deputy, or any of the officers authorized by this act, to investigate fires, shall have the right and authority, at all times of the day and night, in performance of the duties imposed by the provisions of this act, to enter upon and examine any building or premises when a fire has occurred, and any other building or premises adjoining the same. Any investigations held under the provisions of this act, may, in the discretion of the officers holding same, be private; and persons other than those required to be present may be excluded from the place where such investigation is held, and witnesses may be kept separate and apart from each other, and not allowed to communicate with each other until they have been examined.

"Sec. 5. Be it further enacted, that any officers referred to in this act who neglects or refuses to comply with the requirements of this act shall be guilty of a misdemeanor, and, upon a conviction shall be punished by a fine of not less than fifty nor more than two hundred and fifty dollars.

"Sec. 6. Be it further enacted, that a tax of one-fifth of one per centum on the gross receipts of the fire insurance companies doing business in this state, shall be, and it is hereby levied for the purpose of providing a fund for the defraying the cost of the enforcement of this act, to be collected by the Insurance Commissioner as other taxes on fire insurance companies are now collected in this state, and the Insurance Commissioner shall keep a separate account of all money received and disbursed under this act, and shall include same in his annual report. The Insurance Commissioner shall pay all necessary expenses, including counsel, expense of deputy, detectives and officers, incurred in the performance of the duties imposed by this act, out of said fund hereinbefore provided, and any surplus of said fund remaining at the end of any year shall be taken into the state treasury.

"Sec. 7. Be it further enacted, that this act shall take effect from and after its passage, the public welfare requiring it."

This record discloses that the storehouse of W. E. Wall & Son was destroyed by fire in August, 1907, and upon being notified of such fire by the sheriff of Montgomery county the Insurance Commissioner, under authority given him by paragraph 2 of the first section of the statute, directed the sheriff to investigate the fire and report to him. The sheriff made such investigation and report, and soon thereafter Hon. Austin Peay, an attorney at law, residing in Montgomery county, was employed by the Insurance Commissioner to aid in further investigation of the cause, origin, and circumstances of the fire.

On October 11, 1907, G. W. Sanders was indicted in the criminal court of Montgomery county, charged with arson in burning the property, and the case was set for trial on October 29, 1907. It also appears that said Sanders and certain other parties were also indicted in that court upon the charge of destroying plant beds and tobacco crops and that the cases against them were then pending for trial.

Afterwards Mr. T. Leigh Thompson, Deputy Insurance Commissioner, went to Clarksville for the purpose of conducting an investigation of the cause of the fires in question. While so engaged he caused a number of citizens of the county to be subp naed as witnesses to appear before him and testify in relation to the subject of the inquiry, who failed and refused to appear upon advice of counsel for Sanders and the defendants in the other criminal cases mentioned, because it was believed that the investigation was being made to develop the facts in their cases to the prejudice of the defendants. This advice was given upon application of witnesses to counsel.

There was also then existing much lawlessness in Montgomery county believed to...