State v. Oliver

• Decision Date: 07 February 1931
• Docket Number: 3.
• Citation: 35 S.W.2d 396,162 Tenn. 100
• Parties: STATE v. OLIVER et al.
• Court: Tennessee Supreme Court

35 S.W.2d 396

162 Tenn. 100

STATE v. OLIVER et al.

No. 3.

Supreme Court of Tennessee.

February 7, 1931

Appeal from Circuit Court, Blount County; Pat Quinn, Judge.

Condemnation proceeding by the State against John W. Oliver and others. State's petition dismissed, and each party appeals from the rulings so far as adverse.

Reversed and remanded; state's assignment of error being sustained.

Kramer & Kramer and C. C. Jackson, all of Maryville, for appellants.

J. W Cooper and John R. Aust, both of Nashville, L. D. Smith Atty. Gen., J. Pike Powers, Jr., of Knoxville, and M. H Gamble, of Maryville, for the State.

Frantz, McConnell & Seymour and Green, Webb & Bass, all of Knoxville, A. M. Paine, of Sevierville, and Joseph F. Denney, of Knoxville, amici curiae.

GREEN C.J.

Chapter 55 of the Public Acts of 1925, chapter 57 of the Public Acts of 1925, and chapter 54 of the Public Acts of 1927, authorized the acquisition by the state of a body of mountain land to be turned over to the United States for inclusion in a public park to be known as the Great Smoky Mountains National Park, established by Act of Congress approved May 22, 1926 (16 USCA §§ 403-403c). The details of the plan are set out in the acts of the Legislature and the act of Congress just mentioned, and have been discussed in former opinions of this court. Malone v. Peay, 157 Tenn. 429, 7 S.W.2d 40; Id., 159 Tenn. 321, 17 S.W.2d 901.

Chapter 54 of the Acts of 1927 provided for condemnation of land within the area designated as aforesaid for park purposes, and this suit was brought to expropriate certain land; negotiations for the purpose of the same having failed.

Numerous defenses were interposed by the landowner. All were overruled save one.

The court below sustained the contention that the state could not exercise the power of eminent domain when the purpose was to turn over the land obtained to the United States, and the state's petition was accordingly dismissed. Each party appealed from the rulings of the circuit judge so far as adverse.

The trial judge apparently dismissed the suit upon propositions laid down by Judge Cooley in People ex rel. v. Humphrey, 23 Mich. 471, 9 Am. Rep. 94, that the sovereign can only exercise the power of eminent domain for its own public uses and not for the public uses of another sovereignty; that, beyond the public uses of the sovereignty exercising the power, there exists no necessity, which is the foundation of the right. This is approved in Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449; Darlington v. United States, 82 Pa. 382, 22 Am. Rep. 766; Grover Irrigation, etc., Co. v. Lovella Ditch, etc., Co., 21 Wyo. 204, 131 P. 43, L. R. A. 1916C, 1275, Ann. Cas. 1915D, 1207, and other cases collected in note, Ann. Cas. 1915D, 1226. That the rule stated is sound may be, and is, conceded, although we do not concede that it has been properly applied in all the cases cited. Nor do we agree that the rule can be invoked here to defeat the suit of the state. Principles announced in former decisions of this court compel a contrary conclusion.

The power to tax, no less than the power of eminent domain, is a sovereign power, and, under the Constitution of Tennessee, can only be employed for the public use and necessity of that instrumentality of government which undertakes to exercise such power.

Under section 29 of article 2 of the Constitution, the several counties and incorporated towns of the state may be authorized to impose taxes only "for county and corporation purposes respectively." Upon elaborate consideration, however, this court justified donations, authorized by statute, on the part of Rutherford county and the city of Murfreesboro to a state normal school located in said city and county. This, although the title, management, and control of that institution was vested in the state. Ransom v. Rutherford County, 123 Tenn. 1, 130 S.W. 1057, 1063, Ann. Cas. 1912B, 1356. It was argued that no special benefits were given to the citizens of Murfreesboro and Rutherford county by reason of the location of the normal school at Murfreesboro which were not shared by all other citizens of the state; that every citizen of the state might partake of the advantages of the institution, yet the taxpayers of Murfreesboro and Rutherford county alone were onerated with the bonds issued to raise the contribution. The court said:

"While it is true the state normal school to be established under the provisions of this act is a state institution, it combines features providing for educational advantages which are peculiarly accessible to the scholastic population of Rutherford county and the city of Murfreesboro, thus combining with the state purpose also a municipal and county purpose. We can perceive no constitutional obstacle in the way of the state, county, and city combining for the establishment and maintenance of such an institution."

In Hill v. Roberts, 142 Tenn. 215, 217 S.W. 826, the court held valid statutes authorizing the county of Davidson and the city of Nashville to issue bonds to contribute to the establishment of the memorial square in that city, on the ground that it was a joint state, county, and city enterprise, in the benefits of which the city and county shared.

In East Tennessee University v. Knoxville, 65 Tenn. (6 Baxt.) 175, it was held that the city of Knoxville had power under the Constitution to appropriate money for the benefit of East Tennessee University. It was said:

"The controlling question is, was the appropriation made to secure to the inhabitants of the city the benefits and advantages of education? Nor is the principle affected by the fact that pupils from every other county or State or country, have the same privilege of going to the school with the pupils whose parents are members of the corporation of Knoxville. The appropriation is made not to secure the inhabitants of Knoxville either superior rights or privileges over the inhabitants of other portions of the country, but to secure the advantages resulting from their proximity to the school. The object is to secure the permanent location of the school at a point so near to Knoxville that the facilities for and benefits of a thorough education can be enjoyed by the children of its inhabitants without the expense and inconvenience to which those are subjected who are situated at a distance from the school. It does not secure superior rights in the school, but superior advantages in enjoying common rights."

It is not to be doubted, under the reasoning of Ransom v. Rutherford County, supra, and Hill v. Roberts, supra, that the county of Rutherford and the city of Murfreesboro in the one case, and the county of Davidson and the city of Nashville in the other, given statutory authority, might have exercised the power of eminent domain to procure the land necessary for the enterprises undertaken by those counties and cities jointly with the state.

We can perceive no reason why a public use, or a public necessity, may not be common to Tennessee and to the United States, just as such a use or necessity may be common to the state and the county or to the state and the city.

In Memphis v. Hastings, 113 Tenn. 142, 86 S.W. 609, 69 L. R. A. 750, and Railroad v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L. R. A. (N. S.) 828, Ann. Cas. 1913E, 153, the power of the state, or of a municipal arm or agency of the state, to condemn land for park purposes, is fully sustained. We do not think it indispensable that such a public necessity, justifying the exercise of the power of eminent domain, be exclusively the necessity of the particular sovereignty seeking to condemn.

Notwithstanding the area acquired for park purposes by Tennessee is to be conveyed to the United States and controlled by the latter government, the state of Tennessee will be the chief beneficiary of the undertaking. The park will be nearer to the centers of population in this state than to those of any other state. The park will consequently be more available to the people of Tennessee than to the people of any other state, with the possible exception of the people of North Carolina. Our people will enjoy every advantage from this park operated by the federal government that they would enjoy if it were operated by our own state. As said in East Tennessee University v. Knoxville, supra, while the citizens of Tennessee will not have superior rights in the park, they will have superior advantages in enjoying common rights.

In Lancey v. King County, 15 Wash. 9, 45 P. 645, 34 L. R. A. 817, the court sustained the power of a county of that state to condemn land to be later conveyed to the United States to be used and controlled by the latter in the construction of a ship canal connecting certain lakes with Puget Sound. This conclusion was reached largely on the ground that, while the improvement was for the use and benefit of the general public, it was in a much greater degree for the use and benefit of the citizens of that particular locality.

In Rockaway v. Stotesbury (D. C.) 255 F. 345, 352, the power of the state of New York to condemn land for purposes of public defense, and turn the land over to the government, was sustained, since the public defense generally included the defense of the state of New York.

So in State v. Milwaukee, 156 Wis. 549, 146 N.W. 775, the right of condemnation by a local governmental agency was sustained for harbor improvement where the land taken was to be conveyed to the federal government. And in Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563, the court has sanctioned authority given to the park commission of that state to condemn land for the Great Smoky Mountains National Park, although said land is to be conveyed in...