Turner v. Eslick

• Decision Date: 13 May 1922
• Citation: Turner v. Eslick, 240 S.W. 786, 146 Tenn. 236 (Tenn. 1922)
• Parties: TURNER v. ESLICK.
• Court: Tennessee Supreme Court

240 S.W. 786

146 Tenn. 236

TURNER v. ESLICK.

Supreme Court of Tennessee.

May 13, 1922

Certiorari to Court of Civil Appeals.

Action by T. C. Turner, gatekeeper, for the use of the Pulaski & Brick Church Turnpike Company, against Ben Allen Eslick.Certiorari by plaintiff to review a judgment of the Court of Civil Appeals affirming a judgment of dismissal.Reversed and rendered.

R H.Crockett, of Franklin, Smith & Berry, of Nashville, and Eslick & Eslick, of Pulaski, for plaintiff.

R. E Dotson, of Pulaski, and Hughes, Hatcher & Hughes, of Columbia, for defendant.

GREEN J.

Defendant in error, Eslick, drove his automobile through a gate of the Pulaski & Brick Church Turnpike Company, refusing to pay toll, over the protest and objection of the gatekeeper.Eslick was advised that the turnpike company did not have authority under its charter to levy tolls on the passage of motor-driven vehicles.

Section 1777, Thompson's-Shannon's Code, is as follows:

"Any person who passes a turnpike gate without paying toll, or avoids paying toll by going around any such gate, shall forfeit five dollars, for the use of the turnpike, which may be recovered by the gatekeeper before any justice of the peace."

The charter of this Turnpike Company contains a similar provision.

The gatekeeper, Turner, accordingly brought suit before a magistrate to recover this statutory penalty and the toll.The magistrate rendered a judgment in favor of the gatekeeper for $5.15.The circuit court reversed this judgment and dismissed the suit.The Court of Civil Appeals affirmed the judgment of the circuit court.The case is before us on certiorari to the Court of Civil Appeals, and has been fully argued here.

The only question is whether a turnpike company organized under that portion of chapter 142 of the Acts of 1875 providing for the incorporation of such companies is entitled to collect toll from automobiles.

The relevant provision of the turnpike company's charter is authority to charge as follows:

"For hogs or sheep, per head, one (1) cent; for cattle, or horses, or mules, or asses, in a drove, per head, two (2) cents; for horses or mules not in a drove, nor employed in drawing, whether mounted or not, per head, five (5) cents; for every four horse loaded wagon, twenty-five (25) cents; for every two horse loaded wagon, fifteen (15) cents; for buggies, barouches, and other similar two horse carriages, twenty-five (25) cents; for one (1) horse buggies and other similar vehicles for the conveyances of persons, ten (10) cents; for other vehicles for the transportation of goods or produce, drawn by not more than two animals, ten (10) cents; and for each additional animal, five (5) cents, provided toll is charged but for one way, if parties go and return the same day.No toll shall be demanded from persons passing from one to another part of his farm, or from persons attending funerals or religious worship, or in going to or returning from the precincts at elections, or places of militia muster, the person being authorized to vote or perform militia duty, or from persons going to or returning from a grist mill on horseback with grain for family use, or from any person traveling on foot."Thompson's-Shannon's Code, § 2463.

It is to be conceded that the right to collect tolls is a franchise, a sovereign prerogative, and vests in an individual or corporation only when, and only so far as, granted by the Legislature.

It is to be remembered, however, as this court formerly said in construing a corporate charter, "That which is fairly implied is as much granted as that which is expressed."Doty v. Telephone, etc., Co.,123 Tenn. 329, 130 S.W. 1053, Ann. Cas. 1912C, 167.

The conclusion of the lower courts entirely ignores the effect of the exceptions contained in that section of the charter of the turnpike company under consideration.

The charter confers the right to collect tolls and fixes the rates for certain beasts and horse-drawn conveyances.It then provides:

"No toll shall be demanded from persons passing from one to another part of his farm, or from persons attending funerals or religious worship, or in going to or returning from the precincts at elections, or places of militia muster, the person being authorized to vote or perform militia duty, or from persons going to or returning from a gristmill on horseback with grain for family use, or from any person traveling on foot."Thompson's-Shannon's Code, § 2463.

The right to collect tolls having been granted, the exception of persons going on certain missions and the exception of "any person traveling on foot" necessitates the implication that all travel not excepted was subject to toll.That is to say all persons not traveling on foot were subject to toll unless traveling on one of the excepted missions.This construction is justified by a rule long established and frequently employed.

The rule is thus stated:

"An express exception, exemption or saving excludes others.Where a general rule has been established by statute with exceptions, the court will not curtail the former nor add to the latter by implication.Exceptions strengthen the force of a general law, and enumeration weakens it as to things not expressed."Lewis' Sutherland on Statutory Construction, § 494.

The foregoing has been twice quoted and approved by this court.Kelly v. State,123 Tenn. 516, 132 S.W. 193;Burns v. City of Nashville,132 Tenn. 429, 178 S.W. 1053.

In Kelly v. State, supra, the court was considering chapter 23, Acts 1877, the first section of which made it unlawful to sell or tipple any intoxicating beverage within four miles of a school house.It was insisted that a wholesale sale was not prohibited by this section.Sales by manufacturers of such liquors in wholesale packages or quantities were excepted by the second section of the statute.By reason of this exception in the second section of the act it was held that the first section intended to forbid all sales.

In Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, the question arose as to whether the power to regulate navigation was included in the power which the federal Constitution gave to Congress to regulate commerce.Certain sections of the federal Constitution imposed restrictions upon the power of Congress with respect to navigation.It was held that these exceptions implied the power to regulate navigation otherwise than as restricted.Chief Justice Marshall said:

"It is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power, that which was not granted--that which the words of the grant could not comprehend.If, then, there are in the Constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted."Gibbons v. Ogden, supra.

In Brown et al. v. State of Maryland,12 Wheat. 419, 6 L.Ed. 678, the court was considering the power of the state of Maryland to require importers of foreign goods to take out a license.The federal Constitution(article 1,§ 10) provides that-- "No state shall without the consent of Congress, lay any imports, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."

It was held that this exception negatived the power of the state to impose any tax other than an inspection tax, and that the license could not be lawfully exacted.The same learned judge said:

"If it be a rule of interpretation to which all assent, that the exception of a particular thing from general words, proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause, had the exception not been made, we know no reason why this general rule should not be as applicable to the Constitution as to other instruments.If it be applicable, then, this exception in favor of duties for the support of inspection laws, goes far in proving that the framers of the Contitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and supposed them to be prohibited."Brown et al. v. State of Maryland, supra.

From these authorities it follows that but for the exception in the charter of the turnpike company heretofore quoted, this charter would have authorized the company to collect tolls from those traveling on foot.In other words, to collect toll from...