State Highway Dept. v. Mitchell's Heirs

• Decision Date: 15 November 1919
• Parties: STATE HIGHWAY DEPARTMENT ET AL. v. MITCHELL'S HEIRS ET AL.
• Court: Tennessee Supreme Court

216 S.W. 336

142 Tenn. 58

STATE HIGHWAY DEPARTMENT ET AL. v. MITCHELL'S HEIRS ET AL.

Supreme Court of Tennessee.

November 15, 1919

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.

GREEN J.

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:

"Be it further enacted, that the department shall have full power and authority, and it is hereby made its duty through its highway engineers or otherwise to designate a system of state highways to designate the road or roads to be constructed, repaired or maintained by the use of the funds mentioned in this act, and to lay out and locate all such roads. The department is hereby further authorized in its own name or in the name of the county to condemn all necessary rights of way, gravel beds, stone or other material necessary or useful in building or repairing the roads contemplated by this act, and in so doing may bring and prosecute all necessary condemnation suits. The state Attorney General and district Attorney General in each case shall act as attorneys for the department without additional compensation. All judgments rendered and other expenses necessarily incurred in such condemnation proceedings shall be paid out of the general funds of the county, in which the expenses are incurred and standing to the credit of the trustee, on the warrant or voucher of the county judge or chairman drawn under the direction of the secretary of the department.

No cash bond shall be necessary in such suit. Injunction may be sought and obtained against all persons interfering in any way with the work of said department or of any of its assistants or employés engaged in locating, laying out, or constructing any of said roads.

It shall be the duty of all the chancellors and trial judges in this state to grant such injunctions and make all such other orders as will facilitate the work of the department in locating and constructing roads hereunder, and they shall promptly hear all cases in which the department may be interested."

Section 9 of chapter 149 of the Acts of 1919 is in these words:

"Be it further enacted, that whenever the said state highway commission finds it necessary or advisable it shall have the power to alter the course or grade or otherwise improve any road selected, adopted, or accepted for federal or state aid and take over and improve as a state highway. The counties wherein such roads lie shall have and are given the authority to acquire for the benefit of the state rights of way therefor, either by donations by owners of the land through which said highways shall run, or by agreement between such owners and the county, or by the exercise of the power of eminent domain which is hereby expressly conferred upon such counties. Provided, however, if the county authorities through which said road is designated do not act immediately upon request of the said state highway commission for the procurement and furnishing of said rights of way, that there is hereby expressly given to said state highway commission the right to condemn by eminent domain all rights of way for said roads, all bluffs, gravel pits, and any and all other road material found necessary or advisable to be used by said state highway commission. Provided, further, that the said highway commission is authorized and empowered immediately upon the filing of the petition for condemnation of said rights of way and road material to take possession of the said designated right of way, road material and other property sought to be condemned."

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:

" Damages to be Prepaid, or Bond on Appeal.--No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way, until the damages assessed by the jury of inquest and the costs have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment as before provided."

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...