State v. Scott

• Decision Date: 31 December 1852
• Citation: State v. Scott, 32 Tenn. 332 (Tenn. 1852)
• Court: Tennessee Supreme Court
• Parties: THE STATE v. J. S. & W. J. SCOTT.

32 Tenn. 332

THE STATE

v.J. S. & W. J. SCOTT.

Supreme Court of Tennessee.

December Term, 1852.

This was a proceeding in the manner stated in the opinion, in the circuit court of Fentress county.At the February term, 1852, Quarles, judge, presiding, there was judgment for the defendants, and Attorney-General Brien, in behalf of the state, appealed in error.Attorney-General, for the State; Swope, for defendants, cited Arch. 73.

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

By the act of 1848, ch. 219, the Legislature incorporated the defendants and ““their associates and successors,” under the name of the “Montgomery Turnpike Company,” with power “to contract and keep in repair a turnpike road, commencing on the south bank of Wolf River, in Fentress county,” etc.

On the 22d October, 1851, M. M. Brien, Esq., attorney-general of the fourth circuit, filed with the clerk of Fentress circuit court a paper, which he denominated a writ of scire facias, signed by himself, directed to the sheriff of Fentress county, commanding him to summon the defendant to appear at the next February term of said court, and show why their charter should not be vacated and declared null and void, because their said road was, and had remained for more than six months, out of repair.

The clerk endorsed the writ “filed 22d October, 1851, by the attorney-general.”It was served upon the defendants by the sheriff, and they appeared at February term, 1852, and moved to quash the said proceeding, which was done by the court; and the state appealed.

This proceeding is founded on the act of 1835, ch. 54, sec. 4(C. & N. 698.)This act makes general regulations in relation to all turnpike roads, provides a committee of three “commissioners or superintendents” for each county, to examine the roads, open gates when out of repair, etc.And the 4th section says: “If any grantee or owner of any turnpike road or toll-gate shall fail, for the space of six months at any one time, to put or keep the same in good repair, it shall be the duty of the attorney-general(upon satisfactory information being had) to issue a scire facias in the name of the state, stating the charge and complaint, and requiring the party to appear and show cause why their charter should not be vacated, forfeited, and annulled.”

Now, the question here is whether a scire facias, signed by the attorney-general and not by the clerk, upon some record or official complaint lodged with him, can be sustained.We think the act requiring by the letter that officer to issue this writ did not intend that it should proceed from him, nor by his authority alone, and be sustained by his signature, as is attempted in this case.

The intention of the Legislature was that he should collect the facts, and file his official information before the court, as a foundation for the writ, and then that the same, like any other process, should run in the name of the state, with the signature of the clerk.At all events, the information should be filed with the clerk of the court, as a foundation for the writ to be issued by the latter.And even the validity of this course would be doubtful.It surely could not have been intended that a proceeding of such serious import as this, demanding the forfeiture of a solemn charter, and the vacation of so important a grant as the right to a turnpike road or...