Baker v. Donegan

Mr. Justice Swiggart

delivered the opinion of the Court.

This action was begun in 1929', by petition of the Commissioner of Highways and Public Works of the State, seeking condemnation under the law of eminent domain of certain lands of Donegan, for highway purposes. The .action was successfully prosecuted, and a jury of view assessed the damages. At the time the report of the jury of view was filed the existing statutes placed the burden of payment for the land taken upon the County of. Dickson. The county excepted to the report of the jury of view, and demanded a jury trial in the circuit court upon the question of the amount of the damages to which Donegan was entitled.

The case so stood when the General Assembly enacted chapter 57 of the Public Acts of 1981, the general purpose of which was to transfer to the State liability for the payment of the cost of rights of way for state highways, to be paid by the State “as other highway expenses are paid.” Pursuant to this statute, the circuit court rendered judgment for Donegan’s damages against the State, and the State has appealed in error. Donegan did not appeal, and no assignments of error are made for him.

The statute of 1931, appears to have been enacted pursuant to a general scheme or policy to transfer to the State that part of the cost of the construction of the state highway system which had theretofore been cast upon the several counties. See Acts 1927, chapter 23, as amended by Acts 1931, chapter 59, and the opinion this day filed in R. H. Baker, Commissioner, etc., v. Hickman County, 164 Tenn., 294.

At the time the State took possession of Donegan’s land, the general revenues of the county were liable for the payment of compensation therefor. State Highway Department v. Mitchell’s Heirs, 142 Tenn., 58, 216 S. W., 336. It is insisted for the State that the Act of 1931, relieving the county of this liability to Donegan, would amount to the taking of Donegan’s property without due process of law, etc. "We are of the opinion that any question of this character is a right personal to Donegan, and since he does not complain that the State is substituted fór the county as the party liable to him, the State has no standing to make the question.

Neither is it a valid constitutional objection to the effectiveness of the statute of 1931, that execution may not he awarded to Donegan to enforce payment of his judgment. Judgment was properly rendered against the State in an action instituted by the State, through the head of one of its administrative departments. It is the duty of the Commissioner of Highways to pay the judgment out of any moneys under his control, available for the construction of a highway, and his compliance with that duty may be enforced by mandamus. Peerless Const. Co. v. Bass, 158 Tenn., 518, 14 S. W. (2d), 732; State ex rel. v. Hamblen County, 161 Tenn., 575, 33 S. W. (2d), 73. The possible absence of funds for the satisfaction of the judgment does not interfere with the jurisdiction of the circuit court to render it.

An assignment of error is made that the Act of 1931, is unconstitutional and void, in that it contains provisions not germane to its caption. The argument on this point is technical in its nature, and we find it untenable, in view of the established rules of construction followed in the application of article 2, section 17, of the constitution to statutes enacted by the General Assembly.

The record discloses that prior to the institution of the proceedings for the condemnation of Donegan’s property, the Department of Highways and Dickson County entered into a contract or agreement for a division of the cost and expense of the construction of the road, and that pursuant to the general policy of the State, as well as the express requirement of the .law as it then existed, the county agreed generally to furnish all rights of way necessary for the proposed road.

The Act of 1931, excludes from its application cases in which a county has agreed with the Department of Highways to cooperate under the law as it existed prior to 1931, but it is expressly provided in section 3 of the Act that no county shall be deemed to have entered into such an agreement unless the proposal therefor was authorized by the quarterly county court, “setting forth in detail the proposed improvement with location and routing, the landowners and their respective properties in areas and improvements affected thereby,” etc.

No such detailed agreement binding the County of Dickson to pay for Donegan’s land was made, and this case therefore does not fall within the exception to the general policy of the Act of 1931.

That the General Assembly was within its constitutional powers in relieving Dickson County, by general statute applying to all counties alike, from the burden imposed upon the county by previous statute, as well as by agreement or contract with, the State, is indicated in our opinion this day filed in Baker v. Hickman County, referred to above.

We find no constitutional infirmity in the Act of 1931, chapter 57. The judgment rendered by the circuit court was in accord with it, and that judgment is accordingly affirmed.