Williamson County v. Franklin & Spring Hill Turnpike Co.

• Decision Date: 19 March 1921
• Citation: 228 S.W. 714,143 Tenn. 628
• Parties: WILLIAMSON COUNTY v. FRANKLIN & SPRING HILL TURNPIKE CO.
• Court: Tennessee Supreme Court

228 S.W. 714

143 Tenn. 628

WILLIAMSON COUNTY v. FRANKLIN & SPRING HILL TURNPIKE CO.

Supreme Court of Tennessee.

March 19, 1921

Appeal from Circuit Court, Williamson County; J. C. Hobbs, Judge.

Petition by Williamson County against the Franklin & Spring Hill Turnpike Company for condemnation. From a judgment sustaining a demurrer to its petition, petitioner appeals. Reversed and remanded, with directions to overrule the demurrer.

J. C Eggleston and W. J. Smith, both of Franklin, C. P. Hatcher of Columbia, and F. M. Thompson, Atty. Gen., for appellant.

R. H Crockett and T. P. Henderson, both of Franklin, and W. B. Lamb, of Fayetteville, for appellee.

E. J. SMITH, Special Judge.

On the 12th day of August, 1919, Williamson county filed a petition in the circuit court of that county seeking to condemn and appropriate the Franklin & Spring Hill Turnpike Company, together with its easements, right of way, roadbed privileges, franchises, and property, to the end that the same from Franklin, Tenn., to the Maury county line might form and constitute a part of a state and national highway, to be known as the "Jackson Highway." The petition alleged that the defendant below owned a turnpike in Williamson county, Tenn., from the corporate limits of the town of Franklin, extending in a southerly direction to the county line between Williamson county and Maury county, and that it had located and erected on its said road three tollgates at which tolls were exacted and collected from the traveling public passing over said road and through said tollgates.

The petition further alleged that the State Highway Department of the state of Tennessee in its official capacity had selected and adopted the right of way and roadbed throughout its entire length and width to form and constitute a part of a state highway now being constructed through the state of Tennessee by said State Highway Department with the aid of the federal government and the counties through which said highway runs.

The defendant below demurred to the petition and assigned eleven grounds of demurrer. The demurrer was first overruled by the circuit judge, but on a reconsideration of his former action he sustained the same, particularly the second ground thereof, and held as follows:

"There is no valid and effective legislation and no law authorizing the taking of the franchises, rights, privileges, and incorporeal properties of private corporations for public uses, because no provisions are made in any of the statutes on this subject for compensation and for ascertaining the value of this class of property, and, in the absence of these provisions, such taking is in contravention of the provisions of the Constitution of the state of Tennessee and the United States with reference to the taking of private property for public uses."

As above stated, while eleven grounds were assigned in the demurrer, the critical and determinative question herein involved is presented in the above-quoted excerpt of the judgment of the court below. From the action of the court in so sustaining the demurrer of the turnpike company, Williamson county has appealed to this court and has here assigned errors.

It is first insisted that, as the charter of the turnpike company was granted prior to the Constitution of 1870, it constitutes a contract, the obligation of which would be impaired by the taking of its property for the purposes specified in the petition. This contention is wholly without merit, as it is everywhere settled that, although a corporate charter is a contract and protected by the Constitution of the United States, yet the rights and privileges secured by it are property, and, like all other property are subject to the eminent domain power of the state. West River Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535; Red River Bridge Co. v. Clarksville, 1 Sneed, 176, 60 Am. Dec. 143.

The turnpike company next contends that chapter 74, Acts of 1917, violates article 2, § 17, of the Constitution of Tennessee, which provides that--

"No bill shall become a law which embraces more than one subject, that subject to be expressed in the title."

This insistence is to the effect that chapter 74, Acts of 1917, is by its caption a revenue act, while it purports in its body to confer the power of eminent domain.

Counsel for the turnpike company seemingly overlooked the fact that the caption of this act, after providing revenue for use in road building in Tennessee by the State Highway Department, in conjunction with the Secretary of Agriculture of the United States and in conformity to an act of Congress approved July 11, 1916 (U. S. Comp. St. §§ 7477a-7477i), expressly provides:

"And to provide the means and instrumentalities for laying out and carrying on the work of road building in this state, as contemplated by said federal statute."

In Coal, Iron & Railroad Co. v. Flume & Transportation Co., 128 Tenn. 277, 287-290, 160 S.W. 522, it was held that a statute entitled "An act to provide for the organization of corporations" had a title sufficiently broad to embrace the grant of the power of eminent domain.

Inasmuch as the purpose of chapter 74 of the Acts of 1917 was to provide means to cooperate with the federal government in road building, we do not think it can be seriously insisted that the conference in the body of the act of the power of eminent domain on the State Highway Department is not germane to the caption of the act and does not fall fairly within the purview thereof.

The turnpike company, moreover, insists that, conceding that chapter 74 of the Acts of 1917 is a valid act, whatever purported powers of eminent domain are therein conferred are unavailing in the present suit, because this act has been repealed by chapter 149 of the Acts of 1919. In answer to this contention, it may be observed that the two acts were treated as being in existence by the opinion of this court in the case of State Highway Department v. Mitchell's Heirs, 142 Tenn. 58, 216 S.W. 336, although the opinion in that case does not reveal that any alleged repugnancy between the two acts was asserted. Moreover, section 25 of chapter 149 of the Acts of 1919 expressly provides:

"That nothing in this act shall be construed to conflict with the act known as 'Federal Aid Act,' and chapter 74 of the Public Acts of 1917, providing for the co-operation with the federal government in the construction of roads and bridges."

It is, however, insisted that, despite this legislative declaration, chapter 74 of the Acts of 1917 is impliedly repealed by chapter 149, Acts of 1919, in that both cover the same subject-matter, and, as the latter act embraces a complete scheme of legislation, it by implication repeals the former act.

This court at its present term, in the case of Moreau P. Estes v. Romans Hailty, Clerk, Davidson Law (no opinion filed), has taken a contrary view and held the two acts were not inconsistent or repugnant, and that both were in full force and effect. A re-examination of this question has convinced us of the correctness of this view.

Chapter 74 of the Acts of 1917 is one laying an ad valorem tax for the purpose of enabling the state of Tennessee to avail itself of the privileges of the act of Congress of July 11, 1916, while chapter 149 of the Acts of 1919 lays a privilege tax or license on automobiles for the purpose of building good roads in the state. A cursory examination of the two acts will reveal that they did not have the same purpose and object in view, and, as no irreconcilable conflict or repugnancy exists between them, it cannot be said that the latter by implication repealed the former.

Having concluded that the property of the defendant company is subject to the exercise of the right of eminent domain, and that chapter 74 of the Acts of 1917 is not by implication repealed by chapter 149 of the Acts of 1919, the next inquiry is as to the scope of the power of eminent domain conferred by either of these acts, or by any other act in pari materia, so far as authority to condemn the property of the turnpike company is concerned.

For the turnpike company it is insisted that, under section 5 of chapter 74, Acts of 1917, no method or manner is prescribed for ascertaining the value of corporate franchises and incorporeal properties, but that the State Highway Department in its own name or in the name of the county is only authorized to condemn all necessary rights of way, gravel beds, stone, or other material necessary or useful in building or repairing the roads contemplated by said act. Differently stated, the turnpike company insists that no provision is made in chapter 74, Acts of 1917, for condemning the franchises, incorporeal hereditaments, and other incorporeal properties of the defendant in error. This act became a law on April 3, 1917. At the same session of the Legislature chapter 114, Acts of 1917, was passed, which under a suitable caption expressly provided:

"And the county court of any county in the state of Tennessee may take any turnpike or turnpikes in said county, whether owned or operated by individuals or corporations."

By section 2 of this act it is provided:

"It being the purpose of this act to declare the superior right of counties of this state to take public roads and turnpikes for their use after paying reasonable compensation therefor, the same to be ascertained as provided by law."

This latter act became effective April 5, 1917.

It is worthy of observation that the Federal State Aid Road Act (39 Statutes at Large, p. 355 [U. S. Comp. St. § 7477a]), as an essential condition of extending federal aid to the various states in road building, expressly provided:

"That all roads constructed under the provisions of this act

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