State v. Clarksville & Russelville Tpk. Co.

• Court: Tennessee Supreme Court
• Writing for the Court: Totten
• Citation: State v. Clarksville & Russelville Tpk. Co., 34 Tenn. 88 (Tenn. 1854)
• Decision Date: 31 December 1854
• Parties: THE STATE ex rel. v. THE CLARKSVILLE & RUSSELVILLE TURNPIKE COMPANY.

34 Tenn. 88

THE STATE ex rel.

v.THE CLARKSVILLE & RUSSELVILLE TURNPIKE COMPANY.

Supreme Court of Tennessee.

December Term, 1854.

FROM MONTGOMERY.

The attorney-general of the state, on the relation of John Dolan, filed this bill in chancery at Clarksville, against the Clarksville & Russelville Turnpike Company, praying that a certain toll-gate erected by said company, within less than one mile of the town of Clarksville, might be declared a nuisance, and abated as such.

The charter authorized the company to erect a toll-gate within two miles of the town of Clarksville. The gate was erected one mile from the town, and afterward moved some fifty yards nearer, to intercept the travel upon certain other roads converging to the turnpike-road within that distance. The defendants demurred to the bill, and Chancellor Frierson sustained the demurrer; whereupon the complainant appealed to this court.

Robb and Bailey, Hornberger and House, for the complainants, cited 9 Law Lib. 691, 699, 701, 703, 756; 9 Humph. 252; 2 id. 467, 543; 1 id. 524; 8 id. 253; 7 Pick. 225; 17 id. 432; 2 Swan, 282;18 Johns. 397; Acts 1846, ch. 57, sec. 8 (N. S. 107).

Henry and Shackleford, for the defendant.

Totten, J., delivered the opinion of the court.

This bill was filed under the act of 1846, ch. 57, sec. 8, in the name of the state, by William G. Swan, attorney-general, on the relation of John Dolan, in chancery, at Clarksville, and alleges:

That defendant is an incorporated company, with the right to construct, continue, and own a turnpike-road, to begin at Clarksville, and to go to the state line in the direction of Russelville, Kentucky; and to erect toll-gates thereon, and receive tolls, as stated and permitted by its charter. Vide Acts 1830, 1838.

That the road was constructed, and a toll-gate erected at the distance of one mile from the town of Clarksville; that it was afterwards moved forty or fifty yards nearer to Clarksville, to intercept a line of travel.

That defendant, under a proper construction of its charter, may erect a toll-gate at the distance of two miles from Clarksville, and not nearer. That the gate located between the town and Red River, where its tolls are exacted, obstructs and annoys the free use of a ford on the river, and the free use of water at the river. That it obstructs and annoys the necessary intercourse of citizens of the town and its vicinage. That it obstructs and annoys their local trade and business, and is a great inconvenience and injury to the relator. The prayer is that said gate be abated as a nuisance.

The bill was dismissed on demurrer, and plaintiff appealed.

By the words of the charter the defendant may “erect a tollgate within two miles of Clarksville, and appoint a toll-gatherer thereat.”

For the defendant it is argued that the gate may be erected at any place between the town of Clarksville and the two-mile point; that within these limits its location is left to the discretion of the defendant. That this is the obvious meaning of the words used in the statute, by which the franchise was granted.

It is a general rule that the words of a statute, if of common use, are to be taken in their natural and ordinary sense, and without any forced or subtle construction to limit or extend their import. 1 Wheat. 326;20 Wend. 561.

But it is also a rule that the real intention, when accurately ascertained, will always prevail over the literal sense of terms. 1 Kent's Com. 462; People v. Utica Ins. Co., 15 Johns. 380;Whitney v. Whitney, 14 Mass. 92; Dwar. on Stat. 725.

And, therefore, it is said a thing which is in the letter of a statute is not within the statute unless it be within the intention of the makers. Dwar. on Stat. 691.

Now, to discover this intention, the courts may consider the subject-matter, the effects, and the reason of the statute.

The charter controls and restrains, in some degree, the discretion of the defendant in the location of his gate. If left to discretion, it is evident that it would be not to the interest of the defendant to place his gate near the terminus of the road at the town, so that a greater number of...