State v. Lebanon & Nashville Turnpike Co.

• Decision Date: 07 February 1925
• Citation: 268 S.W. 627,151 Tenn. 150
• Parties: STATE EX REL. CITIZENS OF WILSON COUNTY v. LEBANON & NASHVILLE TURNPIKE CO.
• Court: Tennessee Supreme Court

268 S.W. 627

151 Tenn. 150

STATE EX REL. CITIZENS OF WILSON COUNTY v. LEBANON & NASHVILLE TURNPIKE CO.

Supreme Court of Tennessee.

February 7, 1925

Appeal from Chancery Court, Wilson County; J. W. Stout, Chancellor.

Suit by the State, on the relation of certain citizens of Wilson County, against the Lebanon & Nashville Turnpike Company. Decree for complainants, and defendant appeals. Modified and affirmed.

GREEN C.J.

This suit was brought in the name of the state of Tennessee, by Hon. Ridley Mitchell, the District Attorney General on the relation of five citizens of Wilson county, against the Lebanon & Nashville Turnpike Company, a corporation organized under the laws of this state.

The original bill, on account of various matters stated therein sought a forfeiture of the charter of the defendant company and, in the event that relief was denied, asked that the defendant be restrained from maintaining more than three toll gates on the turnpike now operated by it, prayed that the defendant be required to close and abolish its fourth toll gate going west from Lebanon, and prayed for other relief not necessary to be noticed now. An amended bill was subsequently filed, bringing forward some new matters.

Both bills were answered by the defendant and proof taken. Prior to the hearing before the chancellor, a number of questions were eliminated by consent of parties. The remaining questions were disposed of by the chancellor, sitting also as a jury, and he decreed among other things that the defendant did not have the right to maintain the fourth toll gate from Lebanon as now located.

A motion for a new trial and a motion in arrest of judgment were respectively made and overruled, and the defendant appealed to this court.

The only question brought upon this appeal, except a question of procedure, is the right of the defendant company to keep its fourth toll gate from Lebanon as now located, or its right to keep four toll gates on the turnpike it now owns.

The preliminary question of procedure above referred to arises upon the defendant's insistence that the relators upon whose information this suit was brought are precluded by former judgments against them from appearing as relators herein.

It seems that the most of these relators have had previous litigation with the defendant company over the right of the defendant to exact tolls from them for travel over this turnpike. In these several suits one or more of the questions herein presented were made by these gentlemen; they then being defendants. These suits appear to have resulted favorably for the turnpike company. It is therefore urged that these questions are res adjudicata as to these parties and that they are thereby estopped to come in, even as relators, and undertake to litigate such questions again.

This argument is not well founded. These parties do not appear in the same capacity in this suit in which they appeared in the suits brought against them by the turnpike company. In this case they are relators in a suit of the state of Tennessee. In the other cases they were individual defendants in suits brought by the turnpike company.

In order that a judgment may operate as res adjudicata, it is essential that the parties sought to be concluded should have sued or been sued in both cases in the same capacity or character and to enforce the same right. Harris v. Columbia Water, etc., Co., 114 Tenn. 328, 85 S.W. 897; Memphis City Bank v. Smith, 110 Tenn. 337, 75 S.W. 1065; Melton v. Pace, 103 Tenn. 484, 53 S.W. 939.

This is not the suit of individuals. It seeks relief not to be attained by individuals, but only by the sovereign. This suit was brought upon consent of the District Attorney General, indicated by his signature to the original bill. It is a suit for the benefit of the whole people, not for the benefit of the relators. It can only be brought by authority of some representative of the state. Thompson's-Shannon's Code, § 5165 et seq.

It is a mistake to say that--

"such a proceeding is in any sense a private suit. It is not so in the beginning, nor in the progress of the case does it ever become such. It remains as it began, the suit of the government; the relators, however, upon whose information it is instituted on their complaint, being liable for the cost." State ex rel. v. Turnpike Co., 112 Tenn. 615, 79 S.W. 798.

To the same effect see State ex rel. v. White's Creek Turnpike Co., 3 Tenn. Ch. 163; State v. McConnell, 3 Lea, 332; State ex rel. v. Agee, 105 Tenn. 588, 59 S.W. 340.

New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656, is not in point. While that was a suit in the name of a state, it was prosecuted purely for the benefit of a private individual. The court merely refused to countenance a subterfuge by which an individual sought to sue a sovereign state.

The defendant, the Lebanon & Nashville Turnpike Company, was chartered by chapter 15 of the Local Acts of 1835-36. The original charter contained the following provisions:

"And when the said road shall be thus finished for the distance of seven miles from Nashville or Lebanon, the president may apply to the Governor, who shall appoint three discreet and disinterested persons to view said road, and on the report of any two of them, that the road has been completed for the distance aforesaid, in the manner prescribed by this act, it shall be the duty of the Governor to issue his certificate under the seal of the state, authorizing the company to erect two toll gates, one not nearer than one mile of the limits of the corporation of Nashville or Lebanon, and the other not nearer than within five miles of the first, and to appoint a toll gatherer for each gate. * * *

And so soon as said road shall be completed five miles from the second gate as herein directed, a similar application shall be made to the Governor, and the same proceedings had as before directed; and so on for every five miles until said road shall be completed: Provided, there shall not be more than six gates between Nashville and Lebanon; provided, also, that no gate shall be set up until all the road is under contract, or one hundred thousand dollars of the stock actually taken."

Defendant's charter was amended by chapter 200 of the Acts of 1847-48, which contained, among other things, the following provision:

"That the directors of said company may remove and change the location of the gates on said road, by the action of the board, as they may think proper from time to time: Provided, 1st, that no gate shall be placed nearer than three miles to another; and 2nd, that the gates shall not be so located that the travel upon the Stewart's Ferry arm will have to pay at more than two gates to Nashville, and if a gate should be placed on the said arm, it shall not be more than one hundred feet from its junction, nor shall the travel upon said arm, which may turn upon the east end of the main road pay at the first gate on the same, nor shall the travel on the main road from the east, which may turn upon the said arm pay upon the same. There shall never be but two gates from the point of intersection of the said arm and the main road to the city of Nashville, nor shall there be any on the said arm, except as herein provided."

Chapter 49 of the Acts of 1849-50 undertook to repeal chapter 200 of the Acts of 1847-48 authorizing defendant to change the location of its gates. But the Act of 1849-50 has been heretofore held unconstitutional, and need not be further mentioned. State ex rel....