State Highway Department v. Mitchell's Heirs
Decision Date | 15 November 1919 |
Citation | 216 S.W. 336 |
Parties | STATE HIGHWAY DEPARTMENT et al. v. MITCHELL'S HEIRS et al. |
Court | Tennessee Supreme Court |
Appeal from Circuit Court, Washington County; J. Stanley Barlow, Special Judge.
Condemnation suit by the State Highway Department and another against Montgomery Mitchell's Heirs and others. Suit dismissed, and petitioners appeal. Reversed and remanded.
Sells & Simmonds, of Johnson City, and Frank M. Thompson, Atty. Gen., for State Highway Dept.
Cox & Taylor, of Johnson City, for Mitchell's Heirs.
This is a condemnation suit brought by the State Highway Commission and Washington county to appropriate certain land in said county for highway purposes.
The proceedings were had under chapter 74 of the Acts of 1917 and chapter 149 of the Acts of 1919, providing for state highway commissioners, regulating the duties of the commissioners and the counties in the premises, providing for revenue, etc.
The trial judge was of opinion that the two statutes mentioned were unconstitutional in certain features, and, further, that the highway commission and Washington county were without authority to locate this particular highway as attempted for reasons hereafter appearing, and consequently without power to take the particular land herein sought. His honor accordingly dismissed the suit, and petitioners have appealed in error to this court.
Chapter 74 of the Acts of 1917 and chapter 149 of the Acts of 1919 are too elaborate to be set out in full here. The constitutional infirmities thought to exist are in section 5 of chapter 74 of the Acts of 1917 and section 9 of chapter 149 of the Acts of 1919.
Section 5 of chapter 74 of the Acts of 1917 is as follows:
Section 9 of chapter 149 of the Acts of 1919 is in these words:
The trial judge thought that the provisions above quoted, empowering the highway commission, immediately upon the filing of the condemnation suit, to take possession of the property designated was a suspension of general law, for the benefit of particular individuals, inconsistent with the law of the land, and therefore in violation of section 8, article 11, and section 8, article 1, of the Constitution of Tennessee and the Fourteenth Amendment to the Constitution of the United States.
He entertained the same view as to the provision authorizing these suits to be prosecuted without a "cash bond," which language he properly said was intended to mean "cost bond," the word "cash" being obviously a misprint.
The trial court seemed likewise of opinion that the statutes authorized the application of property to a public use without adequate provision to insure "just compensation being made therefor," and thus contravened section 21, art. 1, of the Constitution of Tennessee.
We will consider these constitutional objections in the order in which they have just been mentioned.
Neither of the acts before us undertake to prescribe the details of the procedure to be followed by the counties or highway commission in acquiring property for highway purposes. The right of eminent domain is conferred, and under such circumstances the acts will be held to have been passed "with reference to the established mode of procedure in such cases existing at the time." Railroad v. Memphis, 126 Tenn. 267, 290, 148 S. W. 662, 667 (41 L. R. A. [N. S.] 828, Ann. Cas. 1913E, 153). Therefore proper procedure herein is according to section 1844 et seq., Thompson's Shannon's Code, the general statutes regulating the taking of private property for works of internal improvement, except as such general practice is sought to be modified by the above-quoted sections of the Acts of 1917 and 1919.
The question to be now decided is whether these changes attempted to be made in the general statutes in favor of the counties and highway commission are permissible under the Constitution.
Our condemnation statutes provide for the filing of a petition in the circuit court, notice to the owner, writ of inquiry, jury of view to lay off the land and assess damages, and that the land be decreed to petitioner "upon payment to the defendants or to the clerk for their use, of the damages assessed with costs." Thompson's Shannon's Code, §§ 1845-1859.
Either party may appeal from the finding of the jury of view and have a trial anew in the usual way in the circuit court, and petitioner may enter and proceed with the work, pending appeal, upon giving a good bond. Thompson's Shannon's Code, §§ 1861-1863. Thompson's Shannon's Code, § 1865, is as follows:
Is it permissible, in view of the general laws on the subject, to authorize the highway commission, "immediately upon the filing of the petition for condemnation," to enter and take possession of the property designated? We think so for several reasons.
Law is presumed to be made for the subject or citizen only, and the sovereign is not reached by a statute unless therein named, or unless by necessary implication. Railroad v. Mayor & Aldermen of Union City, 137 Tenn. 491, 194 S. W. 572; Mayor and Aldermen of Morristown v. Hamblen County, 136 Tenn. 242, 188 S. W. 796.
The power of eminent domain may be exercised by the sovereign directly or it may be delegated. We think the statutes (Thompson's Shannon's Code, § 1844 et seq.) were intended primarily to regulate the taking of property by persons or corporations to whom the right of eminent domain had been delegated. However, it is doubtless true that in suits to condemn the sovereign should proceed in the same way, unless the Legislature otherwise directs.
There can be no question but that in taking property under the Acts of 1917 and 1919 for highway purposes the highway commission and the county act merely as arms or agents of the state. Property so acquired is for a state purpose. Rights of way so obtained form links in the state's highway system, to be supervised by the state, and to be maintained with a tax levied by the state.
That is to say, the highway commission and the counties act as governmental agencies in the matter, and not in any corporate or individual capacity. So if it be conceded that the general laws governing condemnation proceedings would otherwise apply, nevertheless such laws may be repealed or modified in their application to the highway commission, and the several counties, acting under authority of the Acts of 1917 and 1919. These agencies may be authorized to proceed in a...
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