Town of Pulaski v. Ballentine

• Decision Date: 10 April 1926
• Citation: Town of Pulaski v. Ballentine, 284 S.W. 370, 153 Tenn. 393 (Tenn. 1926)
• Parties: TOWN OF PULASKI v. BALLENTINE.
• Court: Tennessee Supreme Court

284 S.W. 370

153 Tenn. 393

TOWN OF PULASKI v. BALLENTINE.

Supreme Court of Tennessee.

April 10, 1926

Appeal from Circuit Court, Giles County; W. B. Turner, Judge.

Condemnation proceeding by the Town of Pulaski against Sallie Ballentine.From a judgment overruling demurrer to petition, defendant appeals by permission.Affirmed.

Eslick & Eslick, of Pulaski, for appellant.

Jones & Wagstaff, of Pulaski, for appellee.

GREEN C.J.

By chapter 475 of the Private Acts of 1925, amending chapter 269 of the Acts of 1903, the Legislature undertook to confer on the town of Pulaski the right to acquire property, by purchase or condemnation, for the operation of a public cemetery.The town attempted to condemn certain land near Pulaski for that purpose by proper proceedings in the circuit court.A demurrer to the petition for condemnation was filed which challenged the constitutionality of the act of 1925 just mentioned, in several particulars.The demurrer was overruled by the trial judge, and in his discretion he permitted an appeal to this court.

There were numerous grounds of demurrer below, and corresponding assignments of error in this court.However, only three or four substantial questions are raised.

It is urged that chapter 475 of the Acts of 1925 was passed in contravention of section 17 of article 2 of the Constitution--that the caption of the act does not indicate its subject.The act, however, was an amendatory act, and did make apt reference to chapter 269 of the Acts of 1903, which it proposed to amend.That being so, if the body of the amendatory act is covered by the title of the original act, this is sufficient.

The original act is entitled "An act to incorporate the town of Pulaski, in the county of Giles, state of Tennessee, and the inhabitants thereof, to define the boundaries, and to provide for the government thereof."

As stated above, the act of 1925 proposes to confer on the town of Pulaski the right to acquire property for a public cemetery and the right to maintain such institution.

We have recently been over this ground in Town of Gallatin v Summer County,279 S.W. 387.In that casewe concluded that, under a caption providing in general terms for the incorporation of a municipality, it was permissible to ordain in the body of the act agencies, instrumentalities, ways, and means for the support of the corporation, and the conduct of its affairs.

A cemetery is quite a common municipal agency, and we think provisions respecting such an agency fall within a general title proposing the incorporation of a municipality.There must be a cemetery by every center of population.The books are full of cases where towns and cities have been empowered to operate cemeteries.Such a power is conceded to be properly bestowable upon such corporations in Railroad v. Cemetery Co.,116 Tenn. 400, 94 S.W. 69.Such power in such bodies seem not to have been questioned, but the controversies have arisen as to the right of a town or city to sell or abandon a cemetery, to regulate, or to remove the remains of bodies therefrom.See casesnotes, 42 L. R. A.(N. S.) 1216;27 L. R. A. (N. S.) 260;3 L. R. A. (N. S.) 481.

Indeed, it was not necessary for the Legislature to confer upon the town of Pulaski by special act the power to take and operate cemetery property Such power is conferred on all municipalities by chapter 51 of the Acts of 1915(Thompson's-Shannon's Code, § 1915, subsec.20) as follows:

"Each incorporated town or city or municipal corporation of this state (be and the same hereby) is given the capacity, authority and power to be and act as trustee to the same extent as a natural person for cemeteries or burial places for the dead located within the territory limits of such incorporated town or city or municipal corporation, or within five miles of such limits, when such incoporated town, city or municipal corporation is selected and appointed as such trustee by any corporation, person or court of competent jurisdiction."

Under this statute any person or corporation may convey to a municipality land or property within the limits of said municipality or within five miles thereof, and such municipality may be and act as trustee for said property to the same extent as a natural person.The effect of this statute is to authorize a town or city to hold property appropriated to burial purposes just like any other person, individual, or corporation.All property so dedicated is held in trust for the benefit of those entitled to interment therein."Burial lots, whether public or private, are not the subject of trade or commerce."Hines v. State,126 Tenn. 1, 149 S.W. 1058, 42 L. R. A. (N. S.) 1138.

It appearing from the statute and from the decisions referred to that there is nothing unusual in the acquisition and operation of a cemetery by a municipality, we think such provisions in the amendatory act of 1925 were germane to the title of the original...