or suits to recover other portions of testa- [ These acts authorize the incorporation of tor's estate, under any circumstances. water, heat, electric light, and power com As just qualified, and for the reasons stat-panies. A demurrer was filed, in which the ed in this opinion, we affirm the decree of the constitutionality of the said acts was chalCourt of Civil Appeals, with costs. NOELL et al. v. TENNESSEE EASTERN (Supreme Court of Tennessee. Oct. 17, 1914.) alleged discrimination. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*]| 2. EMINENT DOMAIN (§ 191*)-PROCEEDINGSPETITION-PUBLIC USE. lenged, and from the Judgment of the lower court, overruling this demurrer on this point and another point hereafter to be noted, an appeal was taken to this court. [1] The constitutional objection urged to the acts in question is that they confer the right of eminent domain on corporations organized thereunder, and withhold by implication this right from individuals, firms, and partnerships. This is said to be an arbitrary and unlawful discrimination, and to render the acts void as in conflict with the fourteenth amendment to the federal Constitution and section 8 of article 1 of the Constitution of Tennessee. Quite an elaborate and able argument is One made in support of this ground of demurrer. Although impressed by the argument, the court is not disposed to yield thereto, or concede the invalidity of the acts in question. It is not necessary to determine this question A petition by an electric power company, here, however, for the reason that the plainincorporated under Acts 1895, c. 208, and Acts 1909, c. 128, which authorized companies in- tiff in error, Noell, who thus assails the acts corporated thereunder to engage in some busi- as discriminatory, is not a person adversely ness that is not of a public nature, for the con- affected by the alleged discrimination. Such demnation of lands, which alleged that the pur- being his plight, he is not in a position to pose of the company was the generating of electric current for commercial uses and for lighting question the validity of the statutes. and power purposes, that the company had in- against whom no discrimination is made has vested large sums in the enterprise, which no standing to attack legislative classificawould be of great value to the citizens of the tion as arbitrary and unreasonable. surrounding counties, and that it was engaged in a work of internal improvement which will V. Adams, 192 U. S. 108, 24 Sup. Ct. 219, 48 L. subserve general public use, does not show that Ed. 365; Commonwealth v. Wright, 79 Ky. the power is to be supplied to the public in 22, 42 Am. Rep. 203; Schoolcraft v. L. & N. general, and not to selected individuals, and therefore does not show that the land sought to R. R. Co., 92 Ky. 233, 17 S. W. 567, 14 L. R. be condemned is to be used for a public purpose. A. 579; Brown v. Ohio Valley R. Co. (C. C.) [Ed. Note. For other cases, see Eminent Do- 79 Fed. 176. For many illustrations of this main, Cent. Dig. §§ 509-518; Dec. Dig. § 191.*] | principle, see note under Pugh v. Pugh in 3. EMINENT DOMAIN (§ 191*)-PROCEEDINGS- 32 L. R. A. (N. S.) 954. PETITION-PUBLIC USE. A petition for the condemnation of lands must distinctly show beyond doubt that the land is to be used for a public purpose, since otherwise there is no right to condemn. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 509-518; Dec. Dig. § 191.*] Error to Circuit Court, Greene County; Dana Harmon, Judge. Condemnation proceedings by the Tennessee Eastern Power Company against S. A. Noell and others. From a judgment overruling a demurrer to the petition, the defendants bring error. Reversed and remanded. Susong & Biddle, of Greenville, and Shields & Cates, of Knoxville, for plaintiffs in error. Shoun & Trim, of Greenville, for defendant in error. Cronin A case directly in point is Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 Pac. 631. In this case it was held that a statute which conferred the right of eminent domain on certain classes of foreign corporations and withheld it from other foreign corporations could not be challenged as unconstitutional by one whose property a foreign corporation sought to condemn, since the property owner did not belong to the class discriminated against. See, also, Kelly v. State, 123 Tenn. 516, 554, 132 S. W. 193. Applying this rule to the present controversy, we must hold that plaintiff in error does not belong to the class against whom the alleged discrimination in the act is said to work. He is not adversely affected, and he cannot be permitted in this manner to call GREEN, J. A petition was filed in this in question the validity of these statutes. case to condemn certain land belonging to He is not an individual possessed of a hydrothe plaintiff in error, Noell, by the Tennessee electric plant, nor one who desires to exercise Eastern Power Company, a corporation or- the right of eminent domain. He is merely ganized under chapter 208 of the Acts of a landowner, and it can make no difference 1895 and chapter 127 of the Acts of 1909. to him that corporate projectors of such an For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-74 enterprise as this one of petitioner's appear | improvement, but it sets out no facts to justito be favored by the statutes. [2] The other point raised by the demurrer and relied on in this court is that the petition for condemnation filed by the Tennessee Eastern Power Company does not aver sufficient facts to enable the court to determine whether or not the company is seeking to require the property in question for a public use. We are of opinion that this point is well made. fy this assertion. As we said in Power Co. v. Webb, supra, it is elementary that property cannot be taken under condemnation proceedings for a private use. Although we held in that case that the possession of incidental charter powers to engage in private enterprises will not deprive a corporation of the right of eminent domain given it to effectuate its public purposes, still when such a corporation seeks to condemn land, it must The material statements of the petition are distinctly appear to the court that this land in the following language: is to be devoted to a public use. The petition in this case does not sufficiently indicate such an intention on the part of petitioner with reference to the property sought to be acquired. The power of eminent domain cannot be exercised to deprive a citizen of his property, unless it appears beyond doubt that such property is to be devoted to a public use. It is said on the brief of counsel for the Power Company that an amendment was made to the petition prior to the hearing below which fully set out the purposes of petitioner with reference to the land of plaintiff in error, and a copy of this amendment is printed in the brief, and counsel said that a diminution of the record would be suggested and said amendment brought up. amendment to the petition, as it appears in the brief, is unquestionably broad enough to show that the Power Company was seeking to take this property for public purposes, but no diminution has been suggested, and the said amendment is not before us. The "That it is a corporation organized under the laws of the state of Tennessee for the purpose of generating by water power electric current for commercial uses and for lighting and power purposes. It shows that it is now engaged in the construction of a large masonry dam across the waters of the Nolichucky river, in said county of Greene, the purpose of which is to dam up and store the water of said river, to the end that power may be acquired for the generation of electric current. It shows that it has erected transmission lines from said dam site along and over which will be carried the electric current generated at said dam for transmission and delivery to the citizens of Greene and surrounding counties for said commercial purposes. It shows that it is investing in said enterprise a large sum of money, and that the generation by it of electric current for the purpose aforesaid will be of great value to the citizens of Greene and surrounding counties. It avers that it is engaged in a work of internal improvement, and that the construction of said dam and the generation and delivery of electric current will subserve a general public use." An inspection of the acts under which this petitioner was incorporated shows that it is authorized to engage in some business that is not of a public nature. We have held in the case of Power Co. v. Webb, 123 Tenn. 584, 133 S. W. 1105, that supplying electricity for light, heat, and motive power to all who might desire it was a public use. In so far as this company undertakes to supply electric current to the public, its business is affected with a public use. It has, however, incidental charter powers to engage in private business as well, and we are not able to determine from the petition herein filed whether the land of the plaintiff in error is to be used for the benefit of the public or not. The petition avers that electric current is to be supplied "to the citizens of Greene and surrounding counties for said commercial purposes." There is no averment that all the citizens along the lines of petitioner are to be served with electric current, nor is there any statement of other facts from which we can see that electric current is to be supplied to the public. So far as the language of the peti- STATE ex rel. VINES, Dist. Atty. Gen., v. tioner discloses the purposes of the Power Company, it may be its intention to supply electric current only to persons of its own choice, with whom it may make favorable contracts in Greene and surrounding counties. [3] The petition asserts that the Power Company is engaged in a work of internal On the record before us, we must sustain the demurrer of plaintiff in error, challenging the sufficiency of the averments of the petition, and reverse the judgment of the court below, and remand the case. The case is remanded, however, with permission to the petitioner to amend its pleadings. the petition of the Power Company, but we The plaintiff in error filed an answer to think the circuit judge correctly held that the answer presented only those issues raised by the demurrer. In other words, the answer merely denied the petitioner's averments as to its legal rights and raised no issue of fact. The case has, therefore, been treated by counsel in this court as if here on demurrer, and has been so disposed of by the court. Reversed and remanded. CHADWELL et al. (Supreme Court of Tennessee. Oct. 17, 1914.) 1. INTOXICATING LIQUORS ($ 260*)—LIQUOR NUISANCE-WHAT CONSTITUTES. Under Acts 1913 (2d Ex. Sess.), c. 2, providing, in section 1, that conducting the sale of intoxicating liquors in violation of state law shall be a nuisance, and may be abated, a person who has paid all federal and municipal For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes taxes and who sells liquor only to persons outside of the state, is not maintaining a nuisance within the act; such sales being legal. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 399; Dec. Dig. § 260.*] 2. COMMERCE (§ 40*)-INTERSTATE COMMERCELIQUOR SALES. One who sells intoxicating liquors solely in interstate commerce does not violate local prohibitory laws because he did not purchase his liquor in interstate commerce; the sale and not the purchase of liquors being prohibited. [Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.*] Appeal from Chancery Court, Claiborne County; Hugh G. Kyle, Judge. Bill by the State, on the relation of D. A. Vines, District Attorney General for the First Judicial Circuit, against Smith Chadwell and others, to abate a nuisance. From a decree for complainant, defendants appeal. Reversed and bill dismissed. J. H. S. Morison and J. Frank White, both of Cumberland Gap, for appellants. John P. Davis, of Tazewell, for appellee. BUCHANAN, J. The bill in this cause was filed in the name of the state, on the relation of D. A. Vines, District Attorney General for the First Judicial Circuit, against Smith Chadwell and others. Chadwell by separate answer made defense to the bill, and he alone has prosecuted to this court his appeal from the final decree rendered in the cause, and the decree will therefore be considered in this opinion only in so far as his rights are involved. that he was so engaged in conducting, maintaining, and carrying on the sale of intoxicating liquors in said building or therefrom at the time of the filing of the bill, and that he had been so engaged since March 1, 1914; that the conduct of the business aforesaid at the place stated by Chadwell was a great annoyance to the citizens of Cumberland Gap and a public nuisance; and that the defendant would persist and continue to carry on the business stated unless restrained by injunction. The bill contained an appropriate prayer for relief under the terms and provisions of the act on which the bill was predicated. Chadwell so answered the bill as to take issue upon all of the material averments, except those admitted in a statement of facts filed in the cause. Upon final hearing of the cause, and on the agreed statement of facts, the Chancellor decreed in favor of the state, and under the provisions of the act of 1913 provided fully by the terms of the decree for an abatement of the business carried on by Chadwell as a public nuisance within the terms of that act. From this decree, Chadwell appealed to this court and has assigned errors. There are three assignments of error, but they may well be treated as raising only a single question: Was the Chancellor in error in decreeing as aforesaid under the agreed statement of facts? [1] It is clear, under the first section of the act of 1913, in so far as that section relates to the sale of intoxicating liquors, that only sales made in violation of the laws of the state are declared to be a public nuisance, and that sales not in violation of the laws of the state are not touched by the first section of the act, or by any other section thereof. The controlling question in the present case, therefore, is whether, under the agreed state of facts, it may be said that Chadwell was engaged in sales of liquor in the building in question in violation of The bill was predicated upon chapter 2 of the Public Acts of the Second Extra Session of the General Assembly of the year 1913. This act will be found at page 665 of the published Acts of that year. The constitutionality of this act was sustained by this court in an opinion rendered at its last term at Jackson, Tenn., in the case styled State v. Persica, and reported in 168 S. W. 1057 et seq. The act is entitled "An act to define and more effectually provide for the abatement of certain public nuisances." law. The act, in so far as it need be considered It appears from the statement of facts in this opinion, provides: "That the conducting, maintaining, carrying on, or engaging in the sale of intoxicating liquors; in violation of the laws of this state, in any building, structure, or place within this state, and all means, appliances, fixtures, appurtenances, materials, and supplies used for the purpose of conducting, maintaining, or carrying on such unlawful business * are hereby declared to be public nuisances, and may be abated under the provisions of this act." * The act contains sundry other provisions not necessary. here to be mentioned. The bill in this cause averred in substance that Chadwell had rented and was occupying a building in the town of Cumberland Gap, for the purpose of conducting, maintaining, carrying on, or engaging in the sale of intoxicating liquors therein or therefrom, and that he has paid all taxes required by the municipality and by the United States and by the state and county, for the sale of intoxicating liquors; that he purchases his stock of liquors and keeps the same at his place of business, and ships liquor therefrom to his customers outside of the state of Tennessee on the orders of his customers received by mail with money inclosed to pay for the liquor covered by the order; and that upon the receipt of such orders the liquors are placed in the necessary packages for shipping, addressed to the person making the order, and the packages are conveyed to the railroad depot in Cumberland Gap, by draymen employed for the purpose by Chadwell, and at the depot are delivered to the express company for transportation to the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes respective persons who have ordered the | Kelly Case, each of the sales made by Chadliquors, and who reside outside the state of well was an act of Interstate Commerce. In Tennessee. It also appears that no sales Logan v. Brown, 125 Tenn. (17 Cates) 209, whatever have been made by Chadwell in or 141 S. W. 751, Logan, who was conducting from the premises in question to any person a wholesale business of selling liquors to or persons whatever within the limits of the persons outside of the state of Tennessee but state of Tennessee, nor in any other way, transacting his business at a storehouse in except as set out above. It also appears in Jellico, Tenn., under a state of facts not the statement of facts that the place where materially different from those surrounding the defendant does business is located with- the sales made by Chadwell as set out in the in four miles of a schoolhouse where school present case, was held liable for the wholeis kept. Where or from whom he bought sale liquor dealers privilege tax imposed by his liquors, or how they were delivered to chapter 479 of the Acts of 1909. him, does not appear. In State v. Kelly, 123 Tenn. (15 Cates) 556, 133 S. W. 1011, 36 L. R. A. (N. S.) 171, this court had under consideration a state of facts averred in an indictment based on chapter 1 of the acts of 1909, the first section of which made it unlawful for any person to sell or tipple intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be then in session or not. The facts averred in the indictment were that, on the date referred to in the indictment, the defendants in that case delivered to a common carrier of freight a package containing five gallons of whisky, for shipment to a person residing in the state of New York, who had previously ordered the whisky and sent the purchase price thereof to the defendants through the United States mail from the state of New York. The court, in the concluding paragraph of the opinion in that case, disposed of it as follows: "After a very extended and careful investigation of the case, we are unable to find any ground on which to sustain the indictment. The act on which it is based, chapter 1 of the Acts of 1909, does not cover such a case as stated in the indictment, or if, by any construction, it could be held to cover such a case, it would be simply inoperative that far, but would not be otherwise ineffective. The act is good, but the indictment is bad, and on the grounds stated herein the judgment of the trial court is affirmed." It should be stated, in view of the quotation above, that the indictment in that case set out the facts thereof in substance as they are stated in the present opinion. The reasoning of the opinion very clearly discloses that the court reached the conclusion above stated, for the reason that, to have given the act of the state Legislature effect under the facts of that case, would have brought that act in conflict with the Interstate Commerce clause of the federal Constitution. [2] It is, however, insisted by the state that to bring the present case within the principle of the Kelly Case, supra, the statement of facts should have shown that Chadwell acquired the liquors sold by him as the result of interstate commerce. The exact insistence made by the state, as taken from its brief, is: "That he must show that he has purchased the same in interstate commerce; that he has which constitute the act of interstate commerce; received the same under facts and conditions and that he is lawfully authorized to do so by having paid the license required by the state." We are unable to yield assent to this insistence made by the state. The statement of facts does show that Chadwell had paid all taxes required by law, but it is immaterial whether Chadwell acquired title to the liquors sold by him in interstate commerce or as the result thereof or not. The purchase of intoxicating liquor is not prohibited by statute in this state. In the case of Kelly & Co. v. State, 123 Tenn. (15 Cates) 516, 539, 132 S. W. 193, this court said: "It should be borne in mind that it is 'to sell as a beverage' that is prohibited, and not to drink as a beverage. It is the seller's purpose that is referred to and not the purchaser's." In Logan v. Brown, supra, 125 Tenn. (17 Cates) 214, 141 S. W. 751, it is said: "The circumstance that he purchases all his stock, without the state has no weight in the case. Wheresoever, and whether as the result of interstate commerce or not, Chadwell acquired the stock of liquors from which he made the sales shown by the statement of facts in the present case, we must hold under the authority of State v. Kelly, supra, and the cases therein cited, and Palmer v. Express Co., 129 Tenn. 116, 165 S. W. 236, that the sales made by Chadwell fall within the protecting shield of the interstate commerce clause of the federal Constitution, and stamp his sales, under all the facts disclosby this record, as lawful sales. We are unable to see any material differ-ed ence between the state of facts existing in the Kelly Case, supra, and the facts attending each of the sales made by Chadwell. Undoubtedly, under the ruling made in the It results from these views that there was error in the decree of the Chancellor, for which it must be reversed and the bill dismissed. SOUTHERN RY. CO. v. STATE. (Supreme Court of Tennessee. Oct. 17, 1914.) 1. RAILROADS (§ 98*)-CROSSINGS-CHANGE OF GRADE-POWER OF MUNICIPALITY. A municipal corporation having full control over its streets, and the railroad crossings over such streets, can both alter the grade of the streets, and compel railroad companies maintaining overhead crossings to reconstruct such crossings to conform to the new grade. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*] 2. MUNICIPAL CORPORATIONS (8 661*) STREETS-POWERS OF. Under Shannon's Code, § 1679, providing that the general highway laws shall not apply to incorporated cities or towns, neither the county court nor any other authority can interfere with the control of the streets within a municipality. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434-1436; Dec. Dig. § 661.*] 3. MUNICIPAL CORPORATIONS (§§ 174, 1042*)STREETS-LIABILITY For. Where a municipal corporation allows its streets to get out of repair or become obstructed so as to constitute a public nuisance, both the municipality, and is officers are liable to indict ment. Where a municipality raised the grade of a street under a railroad trestle to such an extent that large loads could not pass thereunder, but did not require the railroad company to elevate its trestle, the railroad company is not liable to prosecution for obstructing the street, even though the trestle constituted a nuisance, for the nuisance, if any, was caused by the act of the municipality. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 773-788; Dec. Dig. § 255.*] Error to Criminal and Law Court, Anderson County; Xen Hicks,, Judge. The Southern Railway Company was convicted of obstructing a public road in the town of Clinton, and it brings error. Reversed. Sawyer & Underwood, of Clinton, and L. D. Smith, of Knoxville, for plaintiff in error. J. H. Wallace and J. B. Burnett, both of Clinton, for the State. GREEN, J. The plaintiff in error was indicted for obstructing a certain public road or street in the town of Clinton, a municipal corporation, was found guilty, and fined $50, and the obstruction ordered to be removed in pursuance of the requirements of the statute (Shannon's Code, § 6871). The case has been brought to this court for review, and a number of errors are assigned to the action of the court below. It will be necessary to consider only that error which questions the sufficiency of the evidence to support the verdict and judgment of the trial court. While there was some conflict in the proof, the preponderance of the evidence is to the effect that in 1887 and 1888 a certain trestle was constructed by the Walden Ridge Railway, the predecessor of plaintiff in error, over what was then known as the Jacksboro road in the town of Clinton. At the time of its construction, this trestle was of sufficient height over the street to permit free travel and use of the said road. The said crossing was in the town of Clinton, but at the time the trestle was built, Clinton was not incorporated. Later the town of Clinton was incorporated, just when it does not appear from this record. In 1903 the first charter of this town was abolished and it was reincorporated under chapter 92 of the Acts of 1875, and chapter 133 of the Acts of 1903. The preponderance of the testimony is that the level of this trestle has not been changed since it was first built by the Walden Ridge Railway Company in 1888. After the town of Clinton was incorporated, however, that municipality, by its agents, filled in the Jacksboro road or street, so as to raise its level, at the point where it is crossed by the trestle, between 2 and 21⁄2 feet. The result is that the trestle is not now high enough above the road to permit of the Passage under it of loads of hay, fodder, and vehicles loaded in this manner. In other words, under present conditions, the trestle is an obstruction to the free use of this road, and the railway company has accordingly been indicted for obstructing the public highway and the trestle found by the court to be a nuisance. [1] To a number of propositions contained in the brief for the state, we fully agree. Under its charter, the town of Clinton has full control of its streets and railroad crossings over the streets. The municipality can alter the grade of its streets, and there can be no doubt under our cases but that it has the power to require railroad companies maintaining overhead crossings to reconstruct said crossings to conform to any change made in the level of the streets thereunder. Dyer County v. Railroad, 87 Tenn. 712, 11 S. W. 943; Chattanooga v. Railroad, 128 Tenn. 399, 161 S. W. 1000. [2] Moreover, the town of Clinton alone has control over its streets and crossings within the corporate limits, and neither the county court nor any other authority can interfere with the municipality in the exercise of this control. Shannon's Code, § 1679; State v. Mayor, etc., of Loudon, 3 Head, 263; De Tavernier v. Hunt, 6 Heisk. 599. [3] If, however, the municipality permits its streets to get so out of repair or obstructed as to become a public nuisance, the said municipality and its officers are liable to indictment. State v. Barksdale, Mayor, 5 Humph. 154; Chattanooga v. State, 5 Sheed, 578; State v. Murfreesboro, 11 Humph. 217; For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |