State v. Enloe

• Citation: 117 S.W. 223,121 Tenn. 347
• Parties: STATE ex rel. COLLIER et al. v. ENLOE et al.
• Decision Date: 10 March 1909
• Court: Supreme Court of Tennessee

117 S.W. 223

121 Tenn. 347

STATE ex rel. COLLIER et al. v. ENLOE et al.

Supreme Court of Tennessee.

March 10, 1909

Appeal from Circuit Court, Davidson County; W. H. Williamson Special Judge.

Bill for mandamus by the State, on the relation of A. D. Collier and others, against B. A. Enloe and others. Demurrer thereto was sustained, and complainants appeal. Affirmed.

Henry Hudson, R. A. Sanson, R. E. L. Mountcastle, J. W. Culton, and Harry Stokes, for appellants.

Charles T. Cates, Jr., Atty. Gen., for appellee Board of Railroad Commissioners.

Jourolmon Welcker & Smith, for appellee Southern Railway Company.

NEIL J.

The bill in the present case was filed by the state of Tennessee upon the relation of A. D. Collier, county judge of Knox county, Clem. J. Jones, county judge of Anderson county, and William Allen, county judge of Campbell county, acting for and on behalf of the said counties of Knox, Anderson and Campbell, and upon the relation of the said counties of Knox, Anderson, and Campbell, against B. A. Enloe, Harvey H. Hannah, and Frank Avent, constituting the Tennessee State Board of Railroad Commissioners, and ex officio assessors for the state of Tennessee of railroad properties for taxation.

The purpose of the bill is to compel by the writ of mandamus the railroad commissioners to assess for taxation the property of the Knoxville & Ohio Railroad Company, a line of railway running from the city of Knoxville, through the three counties named, to the Kentucky line at Jellico.

The bill was filed in the circuit court of Davidson county on the 8th of October, 1907. It prayed for an alternative writ of mandamus, directing the defendants to assess the property of the railroad company for the year 1907, and to back assess the property for the 10 preceding years, or to show cause at the next term of the court for not doing so. There was also a prayer that the defendants be required by the alternative writ to continue and remain in session as the State Board of Tax Assessors, "pending and until the final determination of this case, so that such writ of mandamus to assess said railroad property above prayed for, if made permanent upon the hearing, may be operative as against said defendants." It was charged in the body of the bill, under an amendment allowed, that the defendants were in session as a board at the time the bill was filed.

The bill was signed by the several county judges, and by the attorneys for the counties. At the bottom of the bill was the following entry:

"I hereby consent, on behalf of the state of Tennessee, to the filing of the foregoing petition for writ of mandamus, in the name of the state of Tennessee, upon the relation of the counties of Anderson, Campbell, and Knox, and Clem. J. Jones, William Allen, and A. D. Collier, county judges of said counties, against B. A. Enloe, Harvey H. Hannah, and Frank Avent, State Board of Railroad Commissioners, and State Board of Tax Assessors, this October 8, 1907.

"[Signed] F. M. Bass,

"Attorney General for Davidson County."

The defendant railroad commissioners filed a demurrer, and also an answer, to the bill.

The Southern Railway Company, although not named in the caption as a defendant, seems to have been admitted as a defendant and allowed to file a demurrer and answer to the bill, as the real party in interest; that company being now the owner of the property of the Knoxville & Ohio Railroad Company.

The demurrers were sustained in the court below, and the complainants thereupon appealed to this court, and have here assigned errors.

Before stating the substance of the bill, it is proper that we should enunciate certain principles that control in controversies wherein the writ of mandamus is asked of the court.

In the case of State v. Wilbur, 101 Tenn. 211, 47 S.W. 411, this court quoted with approval the following excerpt from High on Extraordinary Legal Remedies (3d Ed.) § 39:

"The right of mandamus being justly regarded as one of the highest rights known to our system of jurisprudence, it issues only when there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and legal remedy. The right which it is sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases. The person seeking the relief must show a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced. The writ, if granted, must also be effectual as a remedy, and must be within the power of the respondent, as well as his duty, to do the act in question. It follows, also, from the important position which this writ occupies as a remedial process, as well as from its nature as an extraordinary remedy, that the exercise of the jurisdiction rests, to a considerable extent, in the sound discretion of the court, subject always to well-settled principles, which have been established by the courts or fixed by legislative enactments. Causes may therefore arise where the applicant for relief has an undoubted legal right for which mandamus is the proper remedy, but where the court may, in the exercise of a judicial discrimination, still refuse the relief."

In the case of Harris v. State ex rel. the court had under consideration a case wherein the writ of mandamus was sought against the State Board of Tax Assessors, to compel them to perform certain duties in respect of obtaining information needed for proper assessment of the railroads of the state. At the time the application was made, or at least when it came before the court, the assessment had been passed into the hands of the various county officials having charge of the matter, and a very large part of the taxes which fell under the assessment had been paid, and the court held that although the State Board of Tax Assessors had been guilty of a breach of duty in not obtaining the information referred to, yet that under the facts stated, and other facts referred to in the opinion, it would not be to the interest of the state that the question should be overhauled, and the writ was denied. Speaking with reference to the powers of the court upon this subject, it was said in the opinion:

"Without further analysis of the pleadings we have, then, a record before us in which the assessors admit, either in express terms or by necessary implication, serious official delinquency, a negligence and indifference in the discharge of statutory duties which is inexcusable, and threaten to render abortive a system of assessment the work of years of legislative experiment. But the question still remains, even in view of this, will the court, while it has the power, interfere by the writ of mandamus? It is well settled that 'the courts have a discretion whether they will issue or refuse the writ, even where a prima facie right thereto is shown,' Merrill on Mandamus, § 62. 'In exercising such discretion, the court will consider all the circumstances reviewing the whole case, with due regard to the consequences of its action.' Merrill on Mandamus, § 63. Alger v. Seaver, 138 Mass. 331; People v. Ketchum, 72 Ill. 212; People v. Genesee County Circuit Judge, 37 Mich. 281. *** To the same effect is the text of Spelling on Extraordinary Relief, vol. 2, § 1372: 'The writ will usually be refused, notwithstanding a clear right is shown, if, by granting it, public interest would be seriously prejudiced or public transactions hindered, or the rights of third parties interfered with injuriously."' 96 Tenn. 496, 516, 517, 518, 34 S.W. 1017, 1022.

In State ex rel. v. Taylor, 119 Tenn. 229, 258, 259, 264, 276, 277, 104 S.W. 242, it was held that where a demurrer to the petition or bill for mandamus is overruled the court will ordinarily award a peremptory writ at once, but will sometimes allow an affidavit showing the defense which the party desires to interpose, or a sworn answer containing these defenses; and if, upon examination of these papers, it conceives that a reasonable defense is offered, it will remand the cause for answer and further proceedings. In the present case the defendants filed their answers along with their demurrers. It is apparent under the rule just stated, that it will be incumbent upon this court, in determining whether the public interest would justify a litigation along the lines laid down in the bill, to inquire into the nature of the contest into which the state would be plunged upon overruling the demurrer and remanding the cause for trial.

With these preliminary observations, we shall now state the substance of the controversy. In doing this we not only refer to the language of the bill and exhibits thereto attached, but also to the history of the controversy as disclosed by the authorities referred to in the bill.

It appears from the bill that the Lexington & Knoxville Railroad Company was duly chartered by the state of Tennessee by and under chapter 244, p. 385, of the Acts of the Legislature of 1851-52. The name of this company was thereafter, by chapter 324, p. 762, of the Acts of 1853-54, changed to the Knoxville & Kentucky Railroad Company, and the charter was amended accordingly; and thereafter by chapter 217, p. 434, of the Acts of 1855-56, the Legislature further amended the charter by adding thereto the following provisions, viz.:

"Be it further enacted: That the capital stock of the said company, the dividends thereon, and the road and fixtures, depots, workshops, warehouses and vehicles of transportation belonging to said company, shall be forever exempted from taxation; and it shall not be lawful for the state, or any corporation or municipal police or other authority thereof, or of any town, city, county

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