123 Tenn.

Volume 123 — Tennessee Reports

38 opinions

123 Tenn. 1Ransom v. Rutherford County (1909)
1. CONSTITUTIONAL LAW. Statute creating a general education fund for general educational purposes, and including the establishment and maintenance of State normal schools contains but one subject of legislation. The statute (Acts 1909, ch. 264), providing for the creation of a general education fund to be used, among other general educational purposes, for the establishment and maintenance of State normal schools, does not violate the constitutional inhibition (art. 2, sec. 17) against more than one subject of legislation in a legislative bill; for the establishment and maintenance of State normal schools for the education and training of teachers is a part of the school system of the State, and is germane to the subject of the establishment of a general education fund. (Post, pp. 6-12, 18, 19, 21, 22.) Acts cited and construed: Acts 1909, ch. 264. Constitution cited and construed: Art. 2, sec. 17. 2. SAME. “Or” read for “and;” statute authorizing cities and counties to issue bonds to aid State normal schools contains but one subject of legislation. A statute (Acts 1909, ch. 580), who'se title or caption empowers • • municipalities “or” counties to issue bonds in aid of State normal schools located and established therein, and whose body empowers municipalities “and” counties to issue such bonds, does not violate the one subject provision of the constitution (art. 2, sec. 17), prohibiting the inclusion of more than one subject of legislation in a bill or act, and requiring that subject to be expressed in the title, because the disjunctive conjunction or particle “or” used in the caption was clearly and evidently intended for the copulative conjunction “and” as used in the body; and for the further reason that it was contemplated that 'such State normal schools would be located in the cities of the State, and thereby become both a municipal and a county purpose, and the legislative purpose evidently was to authorize both the county and municipality in which a State normal school might be established to issue bonds for the joint purpose of purchasing sites and erecting and equipping buildings for such school, so that there was but one subject of legislation in- encouraging and authorizing municipal and county aid in the establishment of such schools. (Post, pp. 12, 13, 18, 19, 22, 23.) Acts 'cited and construed: Acts 1909, ch. 580. ' Constitution cited and construed: Art. 2, sec. 17. .- 3. STATUTES. “Or” and “and” may be read convertibiy in construing a statute, when. It is a familiar rule of construction that the disjunctive conjunction “or” and the copulative conjunction “and” may be read convertibiy, whenever necessary to carry out the legislative intent as plainly expressed in a statute. (Post, p. 23.) Cases cited and approved: United States v. Pish, 3 Wall., 447; Dumont v. United States, 98 U. S., 143. 4. CONSTITUTIONAL LAW. Statutes establishing public schools and levying taxes for their mainten'ancé are authorized by the constitution. It has long been firmly established in the jurisprudence of Tennessee that the establishment of a system of public schools and the exercise of the taxing power for their maintenance is at the same time a State, county, and municipal purpose, and is fully authorized by the constitution of the State. (Post, pp. 24, 29, 30, 31.) Constitution cited and construed: Art. 11, sec. 12. Cases cited and approved: Governor v. McEwen, 5 Humph., 282; Waterhouse v. Board, 8 Heisk., 859; University v. Knoxville, 6 * Bax., 175; Railroad v. Franklin Co., 5 Lea, 707; B'allentine v. Pulaski, 15 Lea, 635; Edmondson v. Board, 108 Tenh., 557; Hamilton Co. v. Clark, MS., at Knoxville, September term, 1909; Livingston v. Darlington, 101 U. S., 407; Marks v. University, 37 Ind., 155; Burr v. Carbondale, 76 Ill., 455; Hensley v. People, 84 Ill., 544; Merrick v. Amherst, 12 Allen (Mass.), 500. Cited as inapplicable: State v. University, 57 Mo., 178; Wasson v. Commissioners, 49 Ohio St., 622. 5. SAME. Same. State, county, and city may combine for the establishment and maintenance of a State normal school in the city and county. While it is true that the State normal school to be established under the provision's of the statute contained in Acts 1909, ch. 580, is a State institution, still it combines features providing for educational advantages which are peculiarly accessible to the scholastic population of the city and county in which it is established, thus combining with the State purpose also a municipal and county purpose, and there is no constitutional obstacle in the way of the State, county, and city combining for the establishment and maintenance of such an institution. (Post, pp. 24-31, and especially 25 and 26.) See citations under the preceding headnote. 6. SAME. .Same. Same. Statute authorizing counties and cities to issue bonds to aid in establishing State normal schools is not unconstitutional, because persons from other counties may attend. The statute (Acts 1909, ch. 580), authorizing counties and municipalities to issue bonds in aid of the establishment of State normal schools does not violate the constitutional provision (in art. 2, sec. 29) restricting or limiting the taxing power of counties and incorporated towns to county and corporation purposes, because persons from other counties are permitted to attend the school so established in the city and county by the aid of their bonds. (Post, pp. 28-31.) Acts cited and construed: Acts 1909, ch. 580. Constitution cited and construed: Art. 2, sec. 29. Case's cited and approved: Railroad v. County Court, 1 Sneed, 667; University v. Knoxville, 6 Bax., 175; Edmondson v. Board, 108 Tenn., 557 (citing cases). 7. SAME. Same. ' Same. Same. Statute authorizing counties and cities to issue bonds to aid the State in establishing State normal ■schools in them is not unconstitutional because they are not permanently established by statute. The statute (Acts 1909, ch. 580), authorizing counties and cities to issue bonds to aid in establishing State normal public schools, does not violate' the constitutional provision (art. 2, sec. 29) restricting or limiting the taxing power of counties and incorporated towns' to county and corporation purposes, because neither said statute, nor the statute (Acts 1909, ch. 264) providing for the establishment and maintenance of such schools, makes any provision for the permanent location oi such schools in the county and city so issuing their bonds. (Post, pp. 24, 31, 32.) Acts cited and construed: Acts 1909, chs. 264 and 580. Constitution cited and construed: Art. 2, sec. 29. 8.SAME. The State is not a person, company, association, or corporation in the sense of the constitutional inhibition against giving or lending credit by counties and cities without the required vote of qualified voters. The State is a sovereign, and is in no sense a person, company, association, or corporation in the meaning of the constitutional inhibition (art. 2, sec. 29) against the giving or lending the credit of counties and municipalities in aid of any person, company, association, or corporation, unless authorized by the assent of three-fourth of the votes cast by the qualified voters at an election held to determine the question. The State is the government, while the counties and incorporated towns are the arms and instrumentalities of the government; and, education being, under all the decisions, a State, county, and municipal, or corporate purpose, all three may unite in promoting this common object. Therefore, the statute (Acts 1909, ch. 580), authorizing counties and municipalities to issue bonds in aid of State normal schools located and established therein and to be established and maintained under Acts 1909, eh. 264, is not unconstitutional, because it did not provide for an election as to the issuance of such bonds under said constitutional provision. {Post) pp. 32-36.) Acts cited and construed: Acts 1909, chs. 264 and 580. Constitution cited and construed: Art. 2, see. 29. Cases cited and approved: Colburn v. Railroad, 94 Tenn., 53; Lancey v. King Co., 15 Wash., 11; Walker v. Cincinnati, 21 Ohio St., 14, 54.
123 Tenn. 37Cooper v. State (1909)
FROM DAVIDSON. Appeal in error from the Criminal Court of Davidson County. — W. M. Hart, Judge.
123 Tenn. 232Clark v. Memphis Street Railway Co. (1910)
1. FOREIGN CORPORATIONS. State may restrain their exercise of powers contrary to statute, court decisions, good morals, and public policy. Any power attempted to be exercised by a foreign corporation under tbe grant of its charter, or under a foreign statute, that . violates a statute of the State, or of the United States, or that is contrary to the settled decisions of the highest court of the State, or that is contrary to good morals, is against public policy, and the State may restrain the exercise of such power. (Post, pp. 239, 240.) Case cited and aproved: Thornburg v. Harris, 3 Cold., 157, 172. See citations under headnote 2. 2. SAME. May exercise powers where statutes, court decisions, and executive practice are silent, if not against public policy and good morals; sources of public policy. The statutes of the State, or of the United States, and the settled decisions of the highest court of the State are the sources from which public policy must be learned, along with the practice of the executive departments of the State government; and mere 'silence in the statutes- and decisions, as to any certain power of corporations, may he sufficient to indicate that the matter is not against public policy, where it is not against public morals, so that a foreign corporation may act in such matter, or exercise such power. (Post, p. 240.) Cases cited and approved: License Tax Cases, 5 Wall., 469; Cowell v. Colorado Springs Co., 100 U. S., 59; United States v. Freight Association, 166 U. S., 840; St. Louis Mining Co. v. Montana Mining Co., 171 U. S., 655; Insurance Co. v. Railroad,' 70 Fed., 201; Thompson v. Waters, 25 Mich., 223; Floyd v. Loan & Investment Co., 49 W. Va., 334. 3. SAME. Recognized by comity; and they may do any act, within their charter powers, not prohibited .in another State. By comity the existence of a corporation in the State where it is created and resides is recognized in foreign States, like a natural person, and it may make any contract, or do any act in a foreign State, within its charter powers not prohibited by the foreign State, either in its direct enactments, or by its public policy, to be deduced from the general course of legislation, ■ or from the settled adjudications of its highest court. (Post, pp. 240-245.) Cases cited and approved: Insurance & Trust Co. v. Insurance & Trust Co., 11 Hum., 1, 25; Talmadge v. Coal & Transportation Co., 3 Head, 341; Whitlow v. Railroad, 114' Tenn., 357; Bank v. Earle, 13 Pet., 521; Cowell y. Colorado Springs' Co., 100 U. S., 55; Christian Union v. Yount, 101 U. S., 356. 4. CORPORATIONS. In the absence of express or Implied power, one cannot purchase stock in another. The rule in this State is, as is held by the weight of authority over the whole country, that in the absence of express power conferred by the charter of a corporation, or otherwise by legislation, or by necessary implication, one corporation has • no power to buy or subscribe for s'&res of stock in another corporation. (Post, pp. 245-252.) Code cited and construed: Secs. 1520, 2339, 2436 (S.); secs. 1262, 1860 (M. & V.); sec. 1140b (T. & S.). Acts cited and construed: Aets 1869-70 (Private), ch. 49, sec. 4. Cases cited and approved: Nichol v. Nashville, 9 Humph., 257; Deaderick v. Wilson, 8 Bax., 108; Marble Co. v. Harvey, 92 Tenn., 115; Miller v. Insurance Co., 92 Tenn., 167; Coal Co. v. Coal Co., 106 Tenn., 651; Rogers v. Railroad, 91 Fed., 299, and 33 C. C. A., 517. 5. FOREIGN CORPORATIONS. May purchase and hold stock In corporations in this State, when so authorized by charter. A foreign corporation, expressly authorized hy its charter, or hy the statutes of the State of its creation, to purchase and hold stock in other corporations, may purchase .and hold the stock of street railroad corporations in this State, and such purchase is not contrary to public policy as evidence by the statute's and decisions of the supreme court of the State. (Post, pp. 237-239, 252, 253.) 6. SAME. Same. But such purchase is illegal, if it creates a monopoly, unlawful restraint of trade, or suppression of competition. A foreign corporation, expressly empowered by its charter, or by the statutes of the State of its creation, to purchase and , hold stock in other corporations, may purchase and hold the majority of the stock in another corporation in this State; and our courts, in the absence of legislation on the subject, cannot hold that the purchase was illegal, except in so far as monopoly might thereby be created in the line of business of such corporation, or in so far as there might be an unlawful restraint of trade, or suppression of competition between rival corporations and businesses. (Post, pp. 237-239, 252, 253.) 7. SAME. Statute declares public policy of this State, when dealing with the power which may be exercised by any foreign corporation admitted to this State. Our statute (Shannon's Code, sec, 25S9), providing that where the charter of a foreign corporation, or any part thereof, filed in the office of the secretary of State, shall he in contravention or violation of the laws of this State, all such parts thereof as may he found to he in conflict with the laws of this State ’shall be null and void, declares the public policy of this State, when dealing with the power which may be exercised-by any foreign corporation admitted to this State.- (Post, p. 253.) Code cited and construed: Sec. 2559 (S.); sec. 2003 (M. & V.). 8,. SAME. May purphase stock in several other noncompeting corporations, without effecting a consolidation, or affecting their rights. „ A foreign corporation, expressly empowered by its charter, or by the statutes of the State of its creation, to purchase and hold stock in other corporations, may purchase and hold a majority of the stock in several street railway corporations operating street railways in widely separated cities, without any physical connection or common interest, and such purchase and holding of such stock does not create a consolidation of the corporations, because of the absence of a union of corporate interests and stockholders, for the foreign corporation becomes merely a stockholder, and the rights of the several corporations, as 'such, remain -unchanged. (Post, pp. 253, 254.) Case cited and approved: Pullman Car Co. v. Missouri Pacific Railway C’o., 115 V. S., 596, 597. 9. CORPORATIONS. Manipulation and suits by holding corporation to buy in stock will be enjoined, when. Manipulation of the control of a corporation by a holding corporation, which has a majority of its stock, so as to enable it to buy in the remaining stock at an inadequate price, will not be countenanced by equity; and the bringing of needless suits to waste the property of the corporation and destroy its business, with the object of procuring a monopoly for the holding corporation, warrants an injunction at the instance of any stockholder. (Post, pp. 254, 255.) 10. SAME. Holding corporation may vote as stockholders, receive dividends, and exercise privileges as a natural person; but must not defraud minority stockholders, nor prevent performance of public duties. A corporation authorized to acquire stock of other corporations may acquire the permanent ownership of stock in another corporation, and may issue its own stock therefor, and may vote at all meetings of stockholders, receive dividends, and exercise the privileges of a natural person; hut its control must not defraud the rights of minority stockholders, nor prevent the corporation whose stock is purchased from performing its public duties imposed by its charter. {Post, pp. 255, 256.)
123 Tenn. 257Weakley County Road Commissioners v. Illinois Central Railroad (1910)
APPEALS. Motion for new trial is essential in cases tried, before • circuit judge without a jury. A motion for a new trial is as essential and necessary in a case tried by tbe circuit judge without the intervention of a jury, as it is in a case tried with or before a jury. Case cited and approved: Railroad v. Johnson, 114 Tenn., 632.
123 Tenn. 258Scott v. Union & Planters' Bank & Trust Co. (1910)
FROM SHELBY. Appeal from the Chancery Court of Shelby County. H. Dent Minor, Chancellor.
123 Tenn. 298Mobile & Ohio Railroad v. Brownsville Livery & Live Stock Co. (1910)
1. COMMON CARRIERS'. May limit liability for injury to or loss of freight, except for negligence.1 It Is firmly established as a rule of law in this State that a common carrier may, for a sufficient consideration, limit its liability for injury to or loss of property delivered to it for transportation, save that such limitation shall not exempt it from the consequences of its own negligence, or that of its servants. (Post, p. 303.) Cases cited and approved: Dillard v. Railroad, 2 Lea, 289; Railroad v. Manchester Mills, 88 Tenñ., 655; Railroad v. Stone, 112 Tenn., 352. 2. SAME. Reduced freight rate, or transportation over connecting line, is sufficient consideration for limited liability contract. A reduced freight rate, or an agreement tó transport over its own line and that of a connecting carrier, will constitute a sufficient consideration to enable a common carrier to limit its liability . for injury to or loss of property in transportation. (Post, p. 303.) See citations under the preceding headnote. ••3. SAME. Provision for notice of claim for injury ór loss as a condition precedent to recovery is valid and enforceable, when. A provision in the contract of carriage of live, stock that, in case of injury or loss, it shall be a condition precedent to any right of recovery therefor that a notice in writing of the .claim shall he given the agent of the railroad actually delivering the stock, wherever such delivery may be made, before the stock is removed or intermingled with other live stock, is clear, reasonable, valid, and enforceable. (Post, pp. 302-306.) Cases cited and approved: Blackman v. Casualty Co., 117 Tenn., 578; Schonhoff v. Railroad, 135 Mo. App., 705; George v. Railroad, 214 Mo., 551; Moore v. Railroad, 127 S. W., 921. Case cited and distinguished: Smitha v. Railroad, 86 Tenn., 198. 4. SAME. Same. Failure to give notice of claim as required by contract is a defense against an action for negligent injury or loss. The consignee’s failure to comply with the provision for notice of claim for injury or loss, the nature of which provision is stated in the preceding headnote, is a defense which the carrier can successfully make to an action brought by the consignee, based on alleged negligence causing injury to live stock in transit. (Post, pp. 303, 304). See citations under preceding headnote. 5. SAME. Same. Same. Notice of claim for injuries or loss required to be given before removal of live stock given the next day after such removal is insufficient. Where the provision for notice of claim for injury or loss, as shown in the third headnote, stipulates that the notice shall be given before said live stock is removed or intermingled with other live stock, the notice must be given before or at the removal, and a notice given the next day after the removal of the stock about dark the previous night, when the injuries were discovered, is too late and insufficient. (Post, pp. 304, 305.) See citations under headnote 3. 6. PEREMPTORY INSTRUCTIONS. Suit will be dismissed In supreme court upon reversal for circuit judge’s erroneous refusal to give peremptory instructions for defendant. Where the circuit judge erroneously declined to grant the defendant’s motion for peremptory instructions in his favor, and the supreme court reverses the judgment for such error, and suit will be dismissed in the supreme court, without re-mandment. (Post, pp. 303, 306.) -
123 Tenn. 307Richmond v. Travelers' Insurance (1910)
1. ACCIDENT INSURANCE. Proposition for renewal Is not accepted by the Insurer’s failure to reject It for sixteen days. A proposition made by an accident insurance company to renew an existing policy made without the insured’s application for a renewal, sent to the insured in a letter inclosing a renewal receipt for the premium, dated two days before the expiration, of the policy, cannot he held to have' been accepted by the insured, because he failed to return the receipt for cancellation or expressly to reject the proposition for sixteen days, and until fourteen days after the policy of insurance expired. Cases cited and distinguished: Adams v. Eidam, 42 Minn., 53; Insurance Co. v. Jones, 3 Tex. Civ. App., 146; Waters v. Life & Annuity Co., 144 N. C., 663. 2. SAME. Application for isurance or proposition for modification of policy Is not accepted by mere inaction, except for injury operating as an estoppel, when. An application for insurance, even though accompanied by a premium, wall not be treated as accepted, merely because the insurance company delays action thereon for months, but delay may bind the insurance company where the 'applicant has been misled into believing that the application would be accepted, and, relying thereon, has refrained from obtaining other insurance. The same rule applies to the insurer’s proposition to the insured for a modification of the' policy. (Post, pp. 314, 315.) Case cited and approved: Shakman v. U. S. Credit System Co., 92 Wis., 366. 3. SAME. Mistaken view of law upon given facts entertained by insured and agent of insurer will not make a contract without mutual assent. The fact that the agent of the insurer entertained the mistaken view of law that the policy was in force, pending the agent’s renewal proposition of September the 2d, until he received the insured’s reply of September 18th, and that the insured entertained the same mistaken view, and supposed that he would be held on the premium unless released by the insurer, did not change the rule of law that there can be no contract without mutual assent, and did not, in law, substitute for the ineffectiveness of that delay the opinions of these persons, or add to that delay an efficiency which the law did not attach to it. (Post, p. 315.) 4. SAME. Insured’s attempt to cancel policy for his misconception of the completed contract is ineffective before the insurer’s acceptance; and policy is in force pending the negotiations. Where the insured mistakenly or erroneously supposed that his policy of insurance was not in accordance with the completed contract of insurance, and, upon the' receipt of the policy, returned the same to the insurer, or wrote to the insurer that he would not accept it, stating his alleged misconception of the contract, such action of the insured amounted to nothing more than a proposition to cancel or modify the policy, and, until the insurer accepted such proposition, the policy remained in force, and if the insured died pending the negotiations for such cancellation or modification of the policy, the insurer was bound and liable upon the policy as still in force.' (Post, p'p. 315-317.) Cases cited and approved: Insurance Co. v. Jones, 32 Tex. Civ. App., 146; Waters v. Life & Annuity Co., 144.N. C., 663. 5. SAME. Insurer’s proposition of renewal not acted upon by the insured until sixteen days does not amount to an acceptance; case in judgment. The agent of an accident insurer sent to a policy holder a renewal receipt, continuing the policy in force, and also sent a letter stating that the renewal receipt renewed the policy for a specified time, and ashing for the payment of the premium. The policy holder delayed answering for sixteen days, when he wrote, inclosing the receipt and discontinuing the policy. On receipt of this letter, the agent wrote a letter urging the policy holder to continue the policy in force, and stating that the renewal receipt would he held in the office till hearing from the insured. The latter letter was misdirected, and never reached the policy holder, who was hilled before its arrival. The agent and the holder believed that the policy was in force pending the otter contained in the first letter off the agent until.he received the holder’s letter, and the holder supposed that he would he held on the premium unless released by insurer". Upon these facts, the court held that the policy wa's not renewed or continued in force, and that there could he no recovery thereon for the death of the insured covered by the policy.
123 Tenn. 318Vaught v. East Tennessee Telephone Co. (1910)
1. TELEPHONES. Telephone Corporations are quasi public corporations and bound to serve the public without discrimination. A corporation engaged in the general telephone business is a quasi public corporation, and as such is bound, under Acts 1885, ch. 66, sec. 11, and independently of it at common law, to serve the public without partiality or discrimination. {Post, Pi). 320-322, 325, 327.) Acts cited and construed: Acts 1885, ch. 66, sec. 11. Cases cited and approved: Missouri v. Telephone Co., (C. C.), 23 Fed. 539; Telegraph and Telephone Co. v. Deleware, 50 Fed. 677, and 2 C. C. A., 1; Budd v. New York, 143 U. .S„ 517; Telegraph & Telephone Co. v. Kelly, 160 Fed., 316, 87 C. C. A., 268. 2. CORPORATIONS. Statutes prohibiting discrimination in public service are declaratory of the common law. .- It is well settled that statutes providing against discrimination hy corporations affected by public use arc simply declaratory of the common law. (Post, pp. 322, 325.) Cases cited and approved: Telegraph & Telephone Co., v. Kelly, 160 Fed., 316, 87 C. C. A., 268; Telephone Co. v. Fehring, 146 Ind., 189; State v. Telephone Co., 17 Neb., 126; State v. Telephone Co., 61 S. C., 83; State v. Telephone Co., 36 Ohio St., 296. 3. TELEPHONES. Exaction of advance payment from some patrons and extensions of credit to others is not illegal discrimination subjecting the company to the statutory penalty. A telephone company having agreed to furnish a prospective patron a telephone in his home, and declining to install it until he paid three months’ renfal in advance, in accordance with its general rule, is not guilty of discrimination, and chargeable with the penalty prescribed in Acts 1885, ch. 66, sec. 11, upon the ground that the said general rule under which such requirement or exaction was made was not uniformly enforced against those seeking to become patrons; for such a corporation can extend credit, for service rendered, to one or more of its patrons, and exact payment in advance from others, without being guilty of illegal discrimination among its patrons. (Post, pp. 322-328.) Acts cited and construed: Acts 1885, ch. 66, sec. 11. Gases cited and approved: Oregon Short Line v. Northern Pacific (C. C.), 51 Fed., 472; Same Case (O. C. A.), 61 Fed., 159, and 9 C. C. A., 409; Little Rock v. St. Louis, 63 Fed., 777, 11 C. A., 419; Railroad v. Steamship Co., 86 Fed., 407, 30 C. C. A., 142; Telegraph & Telephone Co. v. Kelly, 160 Fed., 316, 87 C. C. A., 268; Yancey v. Telephone Co., 81 Ark. 491. 4. CONSTITUTIONAL LAW. Question of constitutionality of the infliction of the penalty .by Acts 1885, ch. 66, sec. 11, Is reserved. The question whether the statute (Acts 1885, ch. 66, sec. 11), In so far as it inflicts a penalty of one hundred dollars per day as long as the discrimination denounced hy it continues, violates the constitutional provision (art. 1, sec. 21) against talc-ing property without compensation, is reserved and not determined. (Post, p. 328.) Acts cited and construed: Acts 1885, ch. 66, sec. 11. Constitution cited and construed: Art. 1, sec. 21.
123 Tenn. 329Doty v. American Telephone & Telegraph Co. (1910)
1. TELEPHONE COMPANIES. Incorporation and organization was authorized by Acts 1883, ch. 232, amending Acts 1875, ch. 142, The incorporation, chartering, creation, and organization of telephone companies, with the power to construct and operate telephone lines for the transmission of messages, and to conduct a telephone business, with the implied grant of such incidental powers as are absolutely or reasonably necessary to accomplish or effect the purposes of their creation and organization, and not limited to the power of merely manufacturing electricity for telephoning purposes, was authorized by Acts 1883, ch. 232, amending Acts 1875, ch. 142, so as to embrace, in its first section, telephone companies among the corporations that may be organized; and, by its second section, authorizing such telephone corporations to manufacture electricity for telephoning purposes, etc., and, by its third section, authorizing the consolidation of companies to construct and operate telephone lines. (Post, pp. 334-343.) Acts cited and construed: Acts 1875, ch. 142; Acts 1883, ch. 232, secs. 1-3. See Acts 1907, ch. 134. Cases cited and approved: Jonesboro v. McKee, 2 Yerg., 167, 170; Bank v. Jacobs, 6 'Humph., 515,. 521; Miller v. Andrews, 3 Cold., 380; Memphis v. Adams, 9 Heisk., 518; Memphis v. Gas Co., 9 Heisk., 531; Turnpike Co. v. Montgomery Co., 100 Tenn., 417; Turnpike Co. v. Davidson Co., 106 Tenn., 258; Herring v. Ruskin Cooperative Association (Tenn. Chy. App.), 52 S'. W., 327. Case cited and overruled: Telephone Co. v. Nashville, 118 Tenn., 1. 2. SAME. Same. Whatever of the usual powers were lacking under Acts 1883, ch. 232, were conferred by Acts 1885, ch. 66. Whatever of the usual powers exercised or required by telephone companies might have been lacking in telephone companies chartered under Acts 1883, ch. 232, were conferred upon them by Acts 1885, ch. 66, expressly authorizing such corporations to construct and maintain lines over the public highways and streets, and over the lands of private individuals, and giving them the right of eminent domain. (Post, pp. 335, 336, 342, 343.) Acts cited and construed: Acts 1883, ch. 232; Acts 1885, ch. 66. 3. SAME. Lawful existence, with right to erect poles and string wires, is recognized by Acts 1885, ch. 135. Acts 1885, ch. 135, recognizes the lawful existence of telephone .companies, with the right to erect poles, string wires, etc.; for this act prohibits telephone companies from attaching their lines to the poles of other telephone companies without the consent of the latter, and provides methods for the condemnation of the property of private corporations by telephone companies. (Post, pp. 342, 343.) Acts cited and construed: Acts 1885, ch. 135. 4. WORDS AND PHRASES. Abbreviation “etc.” stands for “et cetera," and means “and others,” or “and other things,” and Imports other purposes like those already named. The abreviation “etc.,” occurring in Acts 1883, ch. 232, sec. 2, authorizing telephone corporations to manufacture electricity for telephoning purposes, “etc.,” stands for the Latin words “et cetera,” and means “and others,” or “and other things,” and when used. in connection like this, it is frequently construed to import other purposes of like character with those already named; and as used in this statute, it means that telephone companies are not confined in their powers to the manufacture of electricity, but may do other things for telephoning purposes. (Post, pp. 340, 341.) Acts cited and construed: Acts 1883, ch. 232, sec. 2. 5. TELEPHONE COMPANIES. Powers to be conferred; enumeration of powers excludes other; incidental or implied powers. The general rule undoubtedly is that a corporation has only such powers as its charter confers, and that the enumeration of powers therein excludes those not named; but the absence of express enumeration does not exclude such incidental powers as are reasonably necessary to accomplish the corporate purposes; for a corporation has such implied powers as are necessarily implied from-those granted.' (Post, pp. 338-340.) See citations under the first headnote. 6. STATUTES. Words to- be given their usual .and natural significance. In construing statutes, words should be given their usual and natural significance. (Post, p. 341.) 7. TELEPHONE COMPANIES. Word “telephone” implies the transmission of intelligence, messages, or sound to a far point. The word “telephone” itself implies the transmission of intelligence, messages, or sound to a far point- To incorporate a telephone company, without the power to transmit intelligence or sound, would be to commit a solecism. (Post, p. 342.) 8. EMINENT DOMAIN. Application to landowner for telephone right of way is not a condition precedent to jurisdiction of condemnation proceedings. The application to the landowner for the right of way is not a condition precedent to the jurisdiction of the condemnation proceedings under a statute (Acts- 1885, ch. 66) whose first section gives telephone companies the right to construct, maintain, and operate telephone lines, necessary for the speedy transmission of intelligence, on and over the land of private individuals and others, a right that is unconditionally given, provided ju'st damages shall be paid to the owners by reason of the occupation of such lands, and -whose second section authorizes condemnation proceedings in case of failure, upon application to the landowner, to secure a right of way, by consent, contract, or agreement, and relates only to the remedy, and not to the right of occupation, and is harely a recognition of the right of the parties to ’settle the matter without litigation. (Post, pp. 334, 343, 347.) Acts cited and construed: Acts 1885, ch. 66,' secs. 1 and 2. Cases cited and approved: Bigelow v. Railroad, 2 Head, 624. 9. TELEPHONE COMPANIES. Have all the powers and privileges with reference to rights of way as other corporations organized for internal Improvements. Under the statute (Acts 1883; ch. 232) authorizing the incorporation and organization of telephone companies, and under the statute (Acts 1885,'ch. 66) authorizing telephone companies to construct and operate their lines over the lands of private individuals and others, and under the statute (Acts 1885, ch. 135) recognizing the lawful existence of telephone corporations, with their right to erect poles, string wires, etc., telephone companies, chartered and organized under said statutes, are given all the powers and privileges with respect to the holding of private property tahen for rights of way that are conferred by' sections 1844 to 1867 of Shannon’s Code, upon other corporations organized for internal improvements. Code cited and construed: Secs. 1844-1867 (S.); secs. 1549-1572 (M. & V.); secs. 1325-1348 (T. & S. and 1858). Acts cited and construed: Acts 1883, ch. 232; Acts 1885, chs. 66 and 135. 10. EMINENT DOMAIN. Landowner cannot maintain ejectment for occupation of his land for right of way for telephone line, without condemnation; and he is confined to his statutory remedy to recover damages. Under the statute (Acts 1885, ch. 66) authorizing telephone companies to construct and operate their lines over the lands of private individuals and others, upon payment of just damages, and authorizing condemnation proceedings, the landowner cannot maintain ejectment against a.ny such company so occupying his land without his consent and without compensation made; for the landowners in such cases are confined to their statutory remedy through proceedings to recover damages. (Post, pp. 346, 347.) Acts cited and construed: Acts 1885, ch. 66. Cases cited and approved: Colcough v. Railroad, 2 Head, 172; Railroad v. Adams, 3 Head, 597; Railroad v. Cochrane, 3 Lea, 479; Parker v. Railroad, 13 Lea, 670; Saunders v. Railroad, 101 Tenn., 206. 11. SAME. Landowner’s remedy for telephone company’s occupation of his land must be commenced within twelve months, or it will be barred. Under the statute (Acts 1885, ch. 66) authorizing telephone companies to construct and operate their lines over the lands of private individuals and others, and under the statute (Shannon’s Code, sec. 1867) requiring the statutory remedy for the recovery of damages for property taken for public use to be commenced within twelve months after possession is taken, a suit to recover the damages for the occupation of land by a telephone company must be brought within that period, or the remedy will be barred. (Post, p. 347.) Code cited and construed: Sec. 1867 (S.); sec. 1572 (M. & Y.); Sec. 1348 (T. & S. and 1858).
123 Tenn. 348Diamond v. State (1910)
1. PRIVILEGE TAXES. A prohibited and unlicensable business may be taxed as a privilege. A prohibited and unlicensable business may be taxed as a privilege, and tbe tax imposed may be collected. Tbe fact that a business is made unlawful as a misdemeanor, and a license cannot be issued or obtained authorizing it, does not prevent tbe collection of tbe privilege tax imposed upon such business from a person engaged therein. A statute making tbe retailing of liquors a privilege and imposing a tax thereon applies to sales made in places where the business is prohibited and made a misdemeanor. The statute imposing the tax upon the business and the statute prohibiting the business are consistent, and tend to effect the same purpose, namely, the prevention of the sale of intoxicating liquors. (Post, pp. 352-357.) Acts cited and construed: Acts 1909, ch. 479, sec. 16. Cases cited and approved: Foster v. Speed, 120 Tenn., 470; Carpenter v. State, 120 Tenn., 586; Youngblood v. Sexton, 32 Mich., 406. 2. INTOXICATING LIQUORS. Statute Imposing a privilege tax on sales, and making it a misdemeanor to exercise the privilege without paying the tax, is a part of the system of laws to suppress the traffic. The provisions of the revenue law (Acts 1909, ch. 479, secs. 4', 14, and 16), in so far as they apply to the liquor traffic, by imposing a privilege tax upon the sales of intoxicating liquors, and making it a misdemeanor to exercise the privlege without first paying the prescribed tax, were intended as a part of the sysfem of laws prohibiting and suppressing the liquor traffic. (Post, p. 357.) Acts cited and construed: Acts 1909, ch. 479, secs. 4, 14', and 16. 3. SAME. In prosecution for the misdemeanor for selling liquors without paying the tax, certified copies of records in office of internal revenue collector are admissible. Under the statute (Acts 1909, ch. 384) providing that, “in all prosecutions for violations of the laws of this State prohibiting the sale of intoxicating liquors,” certified copies of the records in the office of the internal revenue collector showing that the accused has paid the internal special revenue tax as a liquor dealer, shall be admitted as competent evidence, and under the statute (Acts 1909, ch. 479, secs. 4, 14, and 16), imposing a tax on the privilege of selling intoxicating liquors and making it a misdemeanor for one to exercise the privilege without first paying the tax, such records are admissible and available in a prosecution for the misdemeanor denounced for selling intoxicating liquors without first paying the tax imposed on the privilege. (Post, pp. 353-358.) Acts cited and construed: Acts 1909, ch. 384; ch. 479, secs. 4, 14, and 16. 4. SAME. Same. Selling liquor without paying the privilege tax imposed may be proved by possession of the internal revenue license. The offense of exercising the privilege of selling intoxicating liquors without first paying the tax imposed by statute (Acts 1909, ch. .479, secs. 4, 14, and 16) is committed by one exercising the businesss of retailing or wholesaling intoxicating liquors without first paying the tax imposed, and the fact of the maintenance of such business may be proved by the possession of the internal revenue license, without proving a sale to some particular person, or without proving any sale at all. (Post, pp. 357, 358.) Acts cited and construed: Acts 1899, ch. 161; Acts 1909, ch. 479, secs. 4, 14, and 16. Cases cited and approved: Club v. Shelton, 104 Tenn., 101; Moriarty v. State, 122 Tenn., 440, 449, 450; Austin v. Shelton, 122 Tenn., 634, 638, 645. 5. CONSTITUTIONAL LAW. Statutes declaring an internal revenue special tax payment prima facie evidence that the party is In the liquor business, and making certified copies thereof admissible as competent evidence, are constitutional and valid. The statute (Acts 1909, ch. 384) providing that, in all prosecutions for violations of the law prohibiting the sale of intoxicating liquors, certified copies of the records in the office of the internal revenue collector showing that the accused has paid the internal revenue special tax as a liquor dealer, or showing the issuance to the accused of an internal revenue special tax stamp shall be admitted as competent evidence, is constitutional and valid as indicating prima, facie evidence of a violation of a prohibitory liquor law, as declared by another statute (Acts' 1909, ch. 479, sec. 4). (Post, pp. 355, 358-362.) Acts cited and construed: Acts 1909, ch. 384, and ch. 479, sec. 4. Constitution cited as construed: Art. 1, secs. 6, 8, and 9. Cases cited and approved: Railroads v. Crider, 91 Tenn., 498, 499; State v. Yardley, 95 Tenn., 546-564’; Winton v. State, 77 Ark., 143; Hestand v. State, 28 Ky. Law Rep., 1315; State v. O’Connell, 82 Me., 30; State v. Monberg, 14 N. D., 291; Commonwealth v. Williams, 6 Gray (Mass.), 1; Commonwealth v. Minor, 88 Ky., 422; and numerous other cases appearing in a quotation from 17 Am. & Eng. Ency. of Law, on pages 359 and 360 of the opinion. 6. EVIDENCE. Statute making certain facts prima facie evidence does not bind jury to convict thereon, but requires the accused to explain. A statute making the possession of an internal revenue license or other fact indicated by the Legislature prima facie evidence of the conducting of a prohibited business does not make it obligatory upon the jury to convict after the presentation of such evidence, but shifts upon the accused the duty to explain. (Post, pp. 362, 363.) 7. CONSTITUTIONAL LAW. Statutes making certain facts conclusive proof are unconstitutional, and those making certain facts prima facie evidence are constitutional. The rule is that statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilt are unconstitutional; and those which merely declare the statutory presumptions affecting the burden of proof are constitutional and valid. (Post, pp. 362, 363.) 8. BILL OF EXCEPTIONS. Cannot supply the omission of the minutes to show action of trial judge upon plea in abatement to presentment. Where the minutes of the circuit court, as sent up to the supreme court, show no action by the trial judge upon the plea in abatement filed as to matters transpiring before the grand jury when the presentment was found, the supreme court will not look to the recitals in the hill of exceptions on the subject, and will not review the error assigned that the circuit judge committed error in rendering judgment, with the intervention of a jury, upon such plea in abatement. (Post, p. 363.) 9. SUPREME COURT PRACTICE. Error Inflicting punishment different from that prescribed by statute will be corrected in supreme court’s judgment. Where the judgment of the trial court inflicts a punishment upon the accused found guilty of a statutory offense different from that prescribed by the statute, the error will be corrected by the supreme court in its judgment, so as to conform to the statute. (Post, pp 363.) Acts cited and construed: Acts 1909, ch. 479, sec. 16. Cases cited and approved: Cronan v. State, 113 Tenn., 53,9; Pressly v. State, 114 Tenn., 534.
123 Tenn. 364Knoxville Water Co. v. East Tennessee National Bank (1910)
1. CORPORATIONS. Cashier of a water company has no express authority to indorse the company's name on checks and deposit them to his personal credit, when. Where the duties of a water company’s employee, designated as “cashier,” were to render and collect water hills, and deposit the collections in a certain bank, without authority to indorse the company’s name, by himself, even on the checks collected by him, but by indorsement of such checks for the company in the name of "Elbert Wheeler, Treasurer,” by a rubber stamp, and to deposit them so indorsed to the credit of the company . under the name and style of the “Knoxville Water Company, Elbert Wheeler, Treasurer,” with no authority whatever over this account to check against it or otherwise; .but money was furnished by the treasurer, and kept in a separate account at the same bank, not in the name of the company at all,-but in the name of such “cashier,” as' “I. A. Martin, Cashier,” to be used by him in paying bills, expenses, etc., of the company, it is held that such cashier did not have express authority to indorse the water company’s name by him as cashier, and. thereunder indorse his individual name, and deposit the checks received by him, payable to the company for water bill's, to his personal credit in another bank and subject to his own check, (Post, pp. 367-372.) 2. SAME. Same. Cashier of a corporation other than a bank has no implied authority to indorse and dispose of its commercial paper. An office employee of a corporation other than a bank, designated as “cashier,” has no implied authority over its financial operations by reason of his such title or designation, and hence has no implied authority to indorse commercial paper in the name of his employer, and to dispose of the same. (Post, pp. 371, 372.) Case cited and approved: Lumber Co. v. Williams, 73 Mich., 86. 3. SAME. Same. Same. Bank allowing employee or officer of a corporation to indorse and deposit its checks to his personal credit cannot be relieved from liability on the ground of his apparent authority, when. . Where the employee of a water company brings the company’s checks to a bank, with which the company had no business relation, and indorses them in its name and deposits them to his individual credit, the transaction is such a's to put the bank on sharp inquiry, even though such employee be an officer of the company, and the bank cannot relieve itself from liability for accepting such a deposit, and cashing the individual checks of such employee, upon the ground that it believed the employee to be acting within the apparent scope of his authority. (Post, pp. 372, 373.) 4. BANKS AND BANKING. Bank paying check upon a forged in-dorsement is liable to the payee thereof. . A bank receiving and collecting a cheek upon a forged indorsement of the payee’s name is liable to the payee for its proceeds, although the bank has fully paid over and accounted for same to the forger, without knowledge or suspicion of the forgery. (Post, pp. 373, 374.) Cases cited and approved: Pickle v. Muse, 88 Tenn., 381; Chism v. Bank, 96 Tenn., 641; Parmer v. Bank, 100 Tenn., 187 (reviewing the authorities). 5. SAME. Same. Bank paying check upon unauthorized indorsement is liable to the payee thereof as upon a forged indorsement under negotiable instruments law. The negotiable instruments law (Acts 1899, ch. 94, sec. 23), providing that a signature is forged or made without authority is wholly inoperative, unless the party against whom it is sought to enforce some right based thereon is precluded from setting up the forgery or want of authority, places a check indorsed without authority on the same basis as a forged indorsement, although it is not technically a forgery in the sense of the criminal law; and a bank paying checks indorsed by an employee in his employer’s ñame without authority, or permitting him to transfer them by such indorsement to the credit of his personal account with the hank, and to check out the same for his personal use, is liable to the employer for the amount thereof. (Post, pp. 373, 374.) Acts cited and construed: Acts 1899, ch. 94, sec. 23.. See citations under the preceding headnote. 6. SAME. Same. Same. Bank's liability to payee for paying checks upon forged or unauthorized indorsements is not affected by the liability of other banks therefor. The liability of a bank to an employer for paying a check drawn in his favor by passing the same to the credit of the personal account of the employee, upon the indorsement of the employee without actual or apparent authority, and permitting him to check out the same for his personal use, is not affected by the fact that other banks, including the drawee bank, might he held liable to the employer, by reason of their connection with the .transaction. (Post, p. 375.)
123 Tenn. 376Southern Railway Co. v. Pardue (1910)
■ 1. INJUNCTION. Damages recoverable are those arising from the injunction, and not those occasioned by the suit. The only damages recoverable for 'the wrongful suing out of an injunction writ are such as arise from the operation of the injunction itself, and not such as are occasioned by the 'suit independent on the injunction. (Post, p. 380.) 2. SAME. Same. Damages recoverable are merely nominal where defendant was deterred by the controversy and suit independent of the worngful injunction; case In judgment. Where the defendant is deterred from building a house on his land by the fact of the adverse claim, and by the suit itself, independent of _the injunction; a's where, after he was made aware of the controversy over the title, he would not have built, or proceeded further with his building operations, until that controversy was settled by decree of the court, the damages recoverable, on the injunction bond, for the wrongful suing out of the injunction writ, are merely nominal. Evidence stated and held to show that defendant was so deterred by the controversy and suit, independent of the injunction. (Post pp. 377-380.) 3. SAME. Rents are not recoverable as damages on injunction bond for wrongful injunction against erection of a building which is finally and permanently abandoned and never erected. Where an injunction wrongfully sued out prevented the defendant from erecting a certain building on his lot, but the erection of which was finally and permanently abandoned, and instead thereof a new, different, and much larger building, costing five times as much, and devoted to different uses, was erected, the defendant is not entitled to recover as damage's on the injunction bond the rental value of such contemplated building never in fact erected. (Post, pp. 380, 381.) Case cited and approved: Bridges v. Lanham, 14 Neb., 369. Case cited and distiguished: .Spears v. Armstrong - (Tenn. Cby. App.), 42 S. W., 37; Roberts v. White, 73 N. Y., 376.
123 Tenn. 382Cayard v. Robertson (1910)
INDEMNITY INSURANCE. Of employer against damages paid for Injuries to employees does not Inure to beneflt'of employees upon the employer’s Insolvency, though the Insurer assumed the defense of the suit for the injuries. Under a policy of indemnity insurance stipulating for the indemnity of an employer against loss for damages on account of bodily injuries accidentally suffered by his employees, but providing that no action shall lie against the insurer unless brought by the assured (the employer) to reimburse himself for loss actually sustained and paid by him in satisfaction of a final judgment after trial of the issue, there is no privity between an injured employee and the parties to the indemnity policy, which is a contract between the insurer and the assured employer, and alone for the latter’s benefit; and such employee, with an unsatisfied judgment against the employer for personal injuries, cannot, upon the insolvency of the employer, obtain a decree against such insurer, and impound the amount of the policy, and appropriate the same to the satisfaction of his unpaid judgment. This rule is not affected by the fact that the insurer, upon the happening of the a’ccident and notice thereof, assumed exclusive control of the negotiations for a settlement and of the defense of the action brought by the employee for his injuries, in accordance with the conditions of the policy; for the insured does not, by assuming such defense of the suit, place itself under obligation to pay the judgment therein recovered. Cases cited and approved: Finley v. Casulty Co., 113 Tenn., 592; Connolly v. Bolster, 187 Mass., 266; Allen v. Gilman (C. C.), 137 Fed., 136. Case cited and disapproved: Sanders v. Frankfort, etc., Insurance Co., 72 N. H., 485. Cases cited as inapplicable: Kennedy v. Fidelity & Casualty Co., 100 Minn., 1; Nesson v. United States Casualty Co., 201 Mass., 71.
123 Tenn. 394State ex rel. Gill v. Corum (1910)
1. APPELLATE JURISDICTION. In mandamus cases, and in all cases not expressly reserved to the supreme court, is conferred upon the court of civil appeals. The statute (Acts 1907, ch. 82) creating the court of civil appeals confers upon that court direct appellate jurisdiction in mandamus cases, because no exception of mandamus cases is made in said statutes; for the appellate jurisdiction in all cases, not expressly reserved to the supreme court, is conferred upon the court of civil appeals. (Post, p. 396.) Acts cited and-construed: Acts 1907, ch. 82. 2. SAME. Same. Value of property is immaterial in determining appellate jurisdiction except when a direct money decree is sought. The supreme court has no jurisdiction of a direct appeal in a mandamus suit to compel a county to issue one hundred thousand dollars of its bonds, since the value of the property involving is immaterial for the purpose of determining the appellate jurisdiction, except in those cases wherein a direct money decree is sought as .the object or purpose of the litigation. (Post, p. 396.) Acts cited and construed: Acts 1907, ch. 82. • Case cited and approved: Chattanooga v. Railroad, 123 Tenn., 497, 499, 500. 3. SAME. Not conferred on supreme court where a resolution of the quarterly county court not passed in pursuance of legislative authority is impeached as involving the constitutionality of a statute, when. The supreme court has no direct appellate jurisdiction in a mandamus suit to compel a county to issue its bonds upon the theory that the quarterly court’s rescinding its prior action, taken under express legislative authority, authorizing the issuance' of 'the bond's, involving the constitutionality of a statute; for the resolution of rescission was not passed in pursuance of legislative authority, and cannot, therefore, be regarded as a statute of the State. (Post, pp. 397, 398.) Cases cited, distinguished, and approved: "Waterworks Co. v. Refining Co., 12.5 U. S., 18; Gaslight & Coke Co. v. Hamilton, 146 TJ. S., 258-266.
123 Tenn. 399State v. Co-operative Store Co. (1910)
1. POLICE POWER. Prevention of fraud is within. The prevention of fraud in general is within the police power of the State. (Post, p. 404.) See cases cited under headnote 2. 2. CONSTITUTIONAL LAW. Statutes for prevention of fraud are not unconstitutional as affecting the right to contract or as depriving persons of liberty and property, when. Statutes enacted for the prevention of fraud, and which have a fair, just, and reasonable relation to the preservation of the lives, health, morals, and general welfare of the public, do not contravene the constitutional provisions against the abridgement of the rights of persons to contract and against the deprivation of their liberty and property without due process of law, although they may interfere to some extent with individual liberty, and the free use and enjoyment of private property. (Post, pp. 404-407.) Constitutions cited and construed: State const., art. 1, sec. 8; U. S. const., 14th am., sec. 1. Cases cited and approved: Neas v. Borehe's, 109 Tenn., 398; People v. Girard, 145 N. Y., 105; .People v. Lurhs, 195 N. Y„ 377; People v. Wagner, 86 Mich., 594; Squire v. Tellier, 185 Mass., 18; State v. Campbell, 64 N. H., 402; State v. Fourcade, 45 La.' Ann., 717; Butler v. Chambers; 36 Minn., 69; Waterbury v. Newton, 50 N.'J., Law, 534; Lemieux v. Young, 211 U. S., 489. 3. SAME. Same. Statute to prevent fraud in the sale of corn meal in packages is not unconstitutional. A statute (Acts 1905, ch. 482) whose object is the prevention of fraud in the. sale of corn meal in packages, purporting expressly or by implication, to contain certain weights and measures for which the purchaser is charged, when in fact they contain less quantities, is authorized under the police power of the State, and does not contravene the constitutional provisions against the abridgment of the right to contract and against the deprivation of .liberty and property without due process of law. Acts cited and construed: Acts 1905, ch. 482. -See. citations under headnote 2. 4. SAME. Same. Same. Statute fixing standard weight of corn 'meal, and regulating its sale in packages is not unconstitutional. A statute (Acts 1905, ch. 482) making the standard weight of a bushel of corn meal, whether bolted or unbolted, forty-eight pounds, and making it unlawful to pack for sale or to sell corn meal in bags or packages except in standard weight quantities of two bushels, one bushel, one-half bushel, one-fourth bushel, and one-eighth bushel, and requiring each bag or package to have marked thereon the quantity and weight it contains, when sold without being weighed or measured, but providing that retail sales may be made from bulk stock when priced and delivered by actual weight or measure, is not unconstitutional as contravening the constittional provisions against the abridgment of the right to contract and against the deprivation of liberty and property without due process of law. Acts cited and construed: Acts 1905, ch. 482.'' Constitution cited and construed: State const., art. 1, sec. 8; U. S. const., 14th am., sec. 1. See cases cited under headnote 2. 5. SAME. Statute fixing the weight of a bushel of corn meal, and ‘ regulating trade in corn meal, under a title “to fix the weight and regulate the trade in corn meal,” is not unconstitutional as containing two subjects, or for its body being broader than its title. A statute (Acts 1905, oh. 482) whose title is “to fix the weight and regulate the trade in corn meal,” etc., and whose body fixes the standard weight oí a bushel of corn meal, and regulates the trade in corn meal, is not unconstitutional upon the ground that the body is'broader than the subject expressed in the title, and contains two subjects; for the subject of legislation expressed in the title is the regulation of the trade in com meal, and the body of the statute fixing the standard weight of a bushel of corn meal, is clearly germane to that subject, and within it, and the words, “fix the weight,” in the title add nothing to the subject so expressed, and are mere surplusage, and will be so treated. (Post, pp. 402-404, 408.
123 Tenn. 409Knox v. Emerson (1910)
1. INHERITANCE TAXES. Statutes forming a complete system for the Imposition and collection thereof. The; tatute contained in Acts 189 B, ch. 174, embraced, as far as it went, within itself, a complete system of taxation upon the subject of the imposition and collection of a collateral inheritance tax, which is supplemented by Acts 1909, ch. 479, sec. 20, imposing a tax upon certain inheritances not taxed under the former law. (Post, pp. 413, 418.) Acts cited and construed: Acts 1893, ch. 174; Acts 1909, ch. 479, sec. 20. Case cited and approved: Zickler v. B'ank, 104 Tenn., 277, 289. 2. SAME. Same. Jurisdiction in county court for collection thereof, either by notice or bills as in chancery. The tax imposed, by Acts 1909, ch. 479, sec. 20, upon inheritances not taxed by Act's 1893, ch. 174, may be collected in the same mode as provided, in said previous statute, for the collection of the tax thereby imposed; that is, either by notice given by the clerk of the county court requiring the interested parties, or tax debtors, to appear before the county court, and show cause why the tax should not be paid, or by bill filed by said clerk in that court to enforce the collection, to be proceeded with as a bill in chancery. (Post, pp'. 413, 414.) Acts cited and construed: Acts 1893, ch. 174, secs. 1 and 15; Acts 1909, ch. 479, sec. 20. 3. SAME. Same. Same. Is a privilege tax, and the county court has jurisdiction for its collection under Acts 1907, ch. 602, sec. 28. The statute (Acts 1907, ch. 602, sec. 28), conferring upon the county courts jurisdiction to try and determine, among others, cases involving delinquent privilege taxes, operates to give those courts Jurisdiction of proceedings or suits to collect the inheritance, because it is a privilege tax, a burden constitutionally imposed upon the right of acquiring property by succession. (.Post, p. 414.) Acts cited and contrued: Acts 1907, ch. 602, 'sec. 28. Case cited and construed: State v. Alston, 94 Tenn., 674. 4. STATUTES. Revenue statutes must be fairly .construed to effect the intended end. A revenue statute, either general or special, must receive a fair construction, to effect the end for which it was intended. (Post, p. 415.) . Case's cited and aproved: Mills v. Thurston Co., 16 Wash., 378; Hubbard v. Brainard, 35 Conn., 563; Cornwall v. Todd, 38 Conn., 443. 5. CONSTITUTIONAL LAW. Statutes to be construed in favor of their constitutionality. Where a statute is susceptible of two interpretations, one. of which sustains its constitutionality and the other defeats it, the court will adopt that view which saves it. (Post, p. 415.) 6. STATUTES. Construed to ascertain legislative intent; construction to give effect to intention rather than defeat it. In every case, the cardinal rule is to ascertain the legislative intention; and, where the language under proper canons of construction will permit, to give effect to that intention, rather than disappoint it by too strict an adherence to the letter of the statute. (Post, p. 415.) 7. TAXATION. Succession tax is not a burden on property, but a privilege tax for receiving property from another. A succession tax is not a burden imposed upon property, but is a privilege tax imposed upon the right of taking property from another, whether by will or devolution as a matter of law. (Post, p. 415.) Case cited and approved: State v. Alston, 94 Tenn., 674. 8. INHERITANCE TAXES. Statute taxing “inheritances” includes the succession to all the property of a decedent, whether under will or under the law. The statute (Acts 1909, ch. 479, sec. 20), imposing a tax upon inheritances not taxed under Acts 189.3, ch. 174, which taxed inheritances except those passing to “father, mother, husband, wife, children, and lineal descendants,” imposes a tax upon the passing of property to a child under the will of a parent, and is not limited to a tax on property passing by operation of law; for the word “inheritance,” as used in said statutes, means the succession to all the rights of a decedent, both in realty and personalty, whether by will or by operation of law. (Post, pp. 413-418.) Code cited and construed; Sec. 685 (S.); sec. 597 (M. & V.) ; sec. 538 (T. & S. and 1858). The provision referred to and construed is in Shannon’s Code only, and not in the others. -Acts cited and construed: Acts 1893, ch. 174; Acts 1909, eh. 479, sec. 20. Cases cited and approved: Swanson v. Swanson, 2 Swan, 446; Zickler v. Bank, 104 Tenn., 277. 9. SAME. Attorney successfully prosecuting suit for taxes under Acts 1909, ch. 479, sec. 20, instituted as required by Acts 1893, ch. 174, is entitled to a fee to be paid by the delinquent. The attorney of the clerk of the county court who institutes suit in accordance with the requirements of Acts 1893, ch. 174, and successfully prosecutes the suit for such clerk, to recover the inheritance tax imposed by Acts 1909, ch. 479, sec. 20, which is hut a supplement to said Acts 1893, ch. 174, imposing inheritance taxes, is entitled to a fee for his service's, to_be paid by the delinquent. (Post, p. 418.) Acts cited and construed: Acts 1893, ch. 174; Acts 1909, ch. 479, sec. 20.
123 Tenn. 419Bird v. Cross (1910)
1. DEEDS OF CONVEYANCE. After acquired title to land passes to grantee under general warranty title. » A subsequently acquired title to land procured by tbe grantor passes to bis grantee by operation of tbe covenant of general warranty of title contained in bis previously executed deed. (Post, p. 422.) Cases cited and approved: Robertson v. Gaines, 2 Humpb., 383; Susong v. Williams, 1 Heisk., 630; Woods v. Bonner, 89 Tenn., 411. 2. EJECTMENT. Judgment was not conclusive on either party at common law. At common law, a judgment in ejectment was not conclusive on either party. (Post, p. 422.) Cases cited and approved: Russell v. Stinson, 3 Hay., 42; Blount v. Garen, 3 Hay., 88. 3. SAME. Same. Statute making judgments in ejectment conclusive against the party against whom recovered applies to judgments against defendants, and not to judgments against plaintiffs, as to a subsequently acquired title. Tbe statute (Shannon’s Code, sec. 5000), providing that any judgment in ejectment shall be conclusive upon tbe party against whom it is recovered, not under disability at the time of tbe recovery, and all persons claiming under him by title accruing after tbe commencem'ent of tbe action, modifies tbe common law rule that a judgment in ejectment was not conclusive on either party only-as to judgments in ejectment recovered against a defendant, and does not apply to a subsequent suit brought by an unsuccessful plaintiff in ejectment upon a new title acquired after tbe commencement or termination of tbe former suit; for tbe title of plaintiff in ejectment is adjudged as of tbe date of tbe bringing of tbe suit. (Post, p. 423-426.) Code cited and construed: Sec. 5000 (S.); sec. 3983 (M. & V.); sec. 3252 (T. & S. and 1858). Acts cited and construed: Acts 1851-52, ch.. 152. Cases cited and approved: McKissick v. McKissick, 6 Humph., 75; Fowler v. Nixon, 7 Heisk., 720; Gore v. Gore, 101 Tenn., 620. 4. SAME* Judgment in ejectment against plaintiff adjudges that he had no title at the date of his suit, but does not adjudge.that defendant has title. A judgment against a plaintiff in ejectment dismissing his suit merely, adjudges that at the date of the instituion of the suit he was not entitled to recover. It does not determine that the defendant has any title to the land. (Post, p. 423.) Case cited and approved: Fowler v. Nixon, 7 Heisk., 720. 5. SAME. Judgment against plaintiff on the ground that his deed is void because his grantor had no title is no bar to a subsequent suit after his grantor acquires the title. -Where the deed to land in controversy in ejectment is held to he void, because the grantor had no title, and not because of some informality in its execution, a judgment against the complainant is no bar to a subsequent action based upon a new title obtained by the complainant’s grantor, which passed to complainant as a subsequently acquired title by force of the covenants of title in complainant’s deed. (Post, p. 426, 427.) ■
123 Tenn. 428Stonega Coke & Coal Co. v. Southern Steel Co. (1910)
1. CORPORATIONS. Process may be served upon officers or agents of foreign corporations as well as domestic corporations. The statute (Shannon’s Code, secs. 4539-4541), providing for personal service on officers or agents of corporations, applies to foreign as well' as domestic corporations. (Post, p. 435.) Code cited and construed: Secs. 4539-4541 (S.); secs. 3536-3538 (M. & V.); secs. 2831-2833 (T. & S. and 1858). Cases cited and approved: Railroad v. Walker, 9 Lea, 4Y5; Peters v. Neely, 16 Lea, 275; Holland v. Railroad, 16 Lea, 414. 2. FOREIGN CORPORATIONS. Attachment will lie at the instance of creditors to reach their property within the jurisdiction of the court. An attachment may he sued out at the proper instance of creditors against a foreign corporation to reach its property and assets within the jurisdiction of the court. Code cited and construed: Sees. 5211, 4539-4541 (S.); secs. 4192, 3536-3538 (M. & V.); 'secs. 3455, 2831-2833 (T. & S. and 1858). Acts cited and construed: Acts 1835-36, ch. 43; Acts 1837-38, ch. 166; Acts 1843-44, ch. 29; Acts 1845-46, ch. 55; Acts 1849-50, ch. 55; Acts 1851-52, ch. 136; Acts 1859-60, ch. 89. 3. STATUTES. Acts 1877, ch. 31, sec. 3, as amended by Acts 1891, ch. 122, sec. 4, was not repealed by implication by Acts 1895, ch. 81, sec. 3, and foreign corporations may become domesticated corporations. The statute (Acts 1877, ch. 31, 'sec. 3, as amended by Acts 1891, ch. 122, sec. 4), to the extent it domesticated foreign corporations upon their compliance with the conditions stated was not repealed by implication by Acts 1895, ch. 81, sec. 3, amending said section 4 of said act of 1891, upon the ground that said section 3 of said act of 1895, omitted the phrase, “it [the corporation] shall then he, to all intents and purposes, a domestic corporation,” found in said section 4 of said act of 1891, for the reason that the first and third sections of the said act of 1877 declared foreign corporations complying with the statute to be corporations of this State. (Pest, pp. 435-443.) Acts cited and construed: Acts 1877, ch. 31; Acts 1891, ch. 122; Acts 1895, ch. 81. 4. SAME. Amendment operates as if incorporated in the amended statute when it was enacted, as to any future action. The amendment of a statute operates precisely as if the subject-matter of the amendment had been incorporated in the prior amended statute at the time of its enactment, so far as regards any action after the amendment is made. (Post, p. 439.) 5. SAME. Later statute covering same subject repeals a former statute by implication. Where two statutes cover the same subject-matter, the last enactment repeals the former by implication. (Post, p. 440.) Cases cited and approved: Druggist Cases, 85 Tenn., 449; Terrell v. State, 86 Tenn., 523;’ Maxwell v. Stuart, 99 Tenn., 4'09. 6. SAME. Repeals by implication are not favored; Irreconcilable repugnancy, or comprehension of all legislation on the subject, is requisite. Repeals by implication are not favored, and a later statute will not be construed to repeal a former statute relating to the ■same subject-matter, unless they are irreconcilably repugnant, or the later statute is evidently intended to supersede all other legislation on the subject and to comprise in itself the sole and complete legislation on the subject. (Post, pp. 440, 441.) Case cited and approved: Chattanooga v. Neely, 97 Tenn., 527. ?. SAME. To be construed so as to give effect to all provisions, and to harmonize with prior laws. Statutes should he construed, if possible, so as to give effect to all their clauses and provisions; and each statute should receive such construction as will make it harmonize with the_ preexisting body of the law. (Post, p. 441.) 8. SAME. Provision in body of statute within the subject expressed in the title of both the amending and amended statutes as to foreign corporations, so as to be constitutional. Where a statute (Acts 1891,. ch. 122) is entitled “An act to amend chapter 31 of the Acts of 1877, declaring the' terms on which foreign corporations, organized for mining or manufacturing purposes, may carry on their business ... in this State, so as to make the provisions of said act apply to all foreign corporations that may desire to own property or to do business in this State,” while the former statute (Acts 1877, ch. 31) so sought to be amended was entitled “An act to declare the terms on which foreign corporations organized for mining or manufacturing purposes, may carry on their business .... in this State,” the amending statute is not unconstitutional because, it contains a provision in its fifth section that where a foreign corporation has no agent in the State upon whom process may be 'served, it may be proceeded against by attachment and publication; for said provision is within the subject expressed in the title of both the amending and amended acts, and does not violate the constitutional provision (art. 2, sec. 17) requiring the subject of a statute to be expressed in its title. (Post, pp. 443, 444.) Acts cited and construed: Acts 1877,-ch. 31; Acts 1891, ch. 122. Constitution cited and construed: Art. 2, sec. 17. 9. SAME. Generality of title is not objectionable, If not made a cover to incongruous and disconnected legislation. The generality of the title of a statute is not objectionable, so long as it is not made a cover to legislation incongruous in itself and which by no fair intendment can be considered as having a necessary or proper connection with the title. (Post, p. 444, 445.) Cases cited and approved: Cannon v. Matb.es, 8 Heis., 504; Frazier v. Railroad, 88 Tenn., 138; Ryan v. Terminal 'Co., 102 Tenn., Ill; Samuelson v. State, 116 Tenn., 470. 10. FOREIGN CORPORATIONS. May be domesticated or made corporations of this State by legislation. The legislature has power to provide by statute for the domestication of foreign corporations, or for making corporations, organized and existing under laws of other States corporations of this State in regard to property,' matters and acts within its territorial jurisdiction. (Post, pp. 445-450.) Cases cited and approved: Young v. Iron Co., 85 Tenn. 189; Railroad v. Wheeler, 1 Black, 286, 297; Railroad V. Harris, 12 Wall., 65, 82; Railroad v. Whitton, 13 Wall., 270; Railroad v. Vance, 96 TJ. S., 458; Railroad v. Alabama, 107 U. S., 581; Clark v. Barnard, 108 TJ. S., 486; Stone v. Loan & Trust Co., 116 TJ. S., 307; Graham v. Railroad, 118 TJ. S., 161; Martin v. Railroad, 151 TJ. S., 673; Railroad v. James, 161 TJ. S., 545; Railroad v. Trust Co., 174 TJ. S., 552; Bernhardt v. Blown, 119 N. C., 506; Debnam v. Telephone Co., 126 N. C., 831. 11. APPELLATE JURISDICTION. Liability of surety on replevy bond in attachment suit not determined in the lower court will not be determined by the supreme court. Where no question was raised in the court below as to the liability of the surety on the replevy bond in an attachment suit for-the reception of the attached property, and no ruling was made with regard to him, and no decree was made fixing his status in the case, and where the only decree below was one adjudging that the attachment was wrongfully sued out, and quashing and abating the same, and referring the cause to the clerk and master to take and account and report the amount, of indebtedness due the complainant, the question of the liability of the defendant and his said surety on the replevy bond will not, upon appeal, be determined by the supreme court. (Post, pp. 450, 451.)
123 Tenn. 452Voightman & Co. v. Southern Railway Co. (1910)
1. CORPORATIONS. Overt act of insolvency indicating assured insolvency converts assets into a trust for creditors. .An overt act of insolvency on tile part of a corporation indicating an assured insolvency converts its assets into a trust fund rfor the benefit of all its creditors. (Post, pp. 457, 460.) (Cases cited and approved: Marr v. Bank, 4 Cold., 471; Moseby v. Williamson, 5 Heisk., 278; Smith v. Insurance Co., 3 Tenn. Chy., 502; Smith v. Insurance Co., 6 Lea, 564; Leipold v. Marony, 7 Lea, 128; Comfort v. McTeer, 7 Lea, 652-660; Bank v. Lumber & Manufacturing Co., 91 Tenn., 12; Publishing Co. v. Car Wheel Co., 95 Tenn., 634; McClaren v. Roller Mill Co., 95 Tenn., 696; Smith v. Printing Co., 97 Tenn., 351; Barrel Co. v. Ward, 99 Tenn., 172. 2. SAME. Same. Assets are converted into a trust .fund for creditors when the corporation has permanently ceased to do business, or to exercise its franchises. One of the tests for fixing' the period, or point of time, when the assets of a corporation are converted into a trust fund for creditors, is that it has permanently ceased to do business, or to exercise its franchises. (Post, p. 457.) See citations under the preceding headnote. 3. SAME. Same. Same. Upon insolvency and ceasing to do business, the assets become a trust fund for creditors, and are not subject to attachment by a creditor so as to give priority. Where an insolvent corporation, engaged in constructing buildings for a railroad company, was forced to cease business on account of its operatives and employees refusing to work, and leaving its service because it did not and could not pay them for their work, for want of funds and its inability to procure them, its property then became a trust fund for the benefit of its creditors, and is not subject to attachment by a creditor, so as to give the attaching creditor priority. (Post, pp. 457-459.) . 4. FOREIGN CORPORATIONS. Local State assets become a trust fund when it becomes insolvent and ceases to do business here, regardless of assets in other States. The local State asset's of a foreign corporation doing business in this State become, upon the date of its ceasing to do business in the State because of insolvency, a trust fund for its creditors, and the court will not inquire into its property and contract rights in other States. (Post, p. 459.) Cases cited and approved: Smith v. Insurance Co., 3 Tenn. Chy., 502; Smith v. Insurance Co., 6 Lea, 564; Leipold v. Marony, 1 Lea, 128. 5. MECHANICS’ LIENS. Right to fix materialman’s lien begins when the last material is delivered under the contract, and the time for acquiring the lien begins to run from that date. The right of the furnisher of materials to a contractor, under a contract to be used in constructing a certain building for another to fix his lien for the materials begins when the last material is delivered under the contract, whether it is used in the building or not, and the time for acquiring the lien by "filing notice thereof will begin to run from the date of the delivery of the last material; (Post, pp. 460-465, 470-473.) Cases cited and approved: Powder Co. v. Railroad, 113 Tenn., 392, 403, 404; Yearsley v. Planigen, 22 Pa. 489; Harrison v. Homeopathic Association, 120 Pa., 28; Bern'sdorf v. Hardway, 7 Ohio Clr.'Ct. R„ 378; Bridge Co. v. Improvement Co., 12 Wash., 272; See also citations under headnote 6. 6. SAME. Same. Time for acquiring lien is not extended by furnishing material to be used instead of material rejected as defective. Where a materialman furnishes material to a contractor, under a contract, to be used in constructing a certain building for another, part of which the owner’s inspector, after the delivery thereof, rejected as defective, the fact that the materialman thereafter furnished additional materials to he used in the place of the alleged defective materials, and so used, did not extend the time for his acquiring a lien for his materials previously furnished under the original contract, hut the time for acquiring such lien began to run from the delivery of the last material under said original contract. The fact that the ma-terialman denied that the rejected materials were defective, and furnished the additional material to be charged for, but finally conceded with the contractor that the rejected materials were defective, is immaterial, and does not operate to extend the time for acquiring the lien under the original contract. (Post, pp. 459-473.) Cases cited and approved: Powder Co. v. Railroad, 113 Tenn., 3S2, 403, 404; Schwab v. Frieze, 107 Mo. App., 553; Brown v. Trane, 98 Wis., 1; Re Brenneman & Ward in Parrish’s-Appeal, 83 Pa., Ill; McKelney v. Jarvis, 87 Pa. 414; Harrison v. Homeopathic Association, 120 Pa., 28, and 134 Pa., 558; Kennebec v. Pickering, 142 Mass., 80; Albright v. Smith, 2 ¡S. Dl, 577; Manufacturing Co. v. Seminary, 45 Minn., 254; Brick Co. v. Stout, 45 Minn., 327; Chapman v. Wadleigh, 33 Wis., 267. See also citations under headnote 5. 7. RAILROADS. What statute applies as to lien for constructing building on railroad line. The statute (Shannon’s Code, sec. 3531, et seq.), giving a lien for work done and materials furnished does not apply to a claim for work done and materials furnished for the construction of a building on the line of a railroad company for use in its business,- but the statute (Shannon’s Code, sec. 3570, et seq.), creating and regulating the lien of contractors and laborers on railroads, controls. (Post, pp. 473, 474.) Code cited and construed: Sec. 353Í, et seq., and sec. 3570, et seq. (S.); sec. 2739, et seq., and sec. 2774', et seq., (M. & V.); sec. 1981, et seq. (T. & S. and 1858), Acts cited and construed: Acts 1883, ch. 220; Acts 1891, ch. 98. 8. CORPORATIONS. General creditors may object, in a general creditors’ Insolvency suit, tó a claim for a lien on the assets. The general creditors of an insolvent corporation, whose assets are being administered under a general creditors’ bill 'for the benefit of creditors, have such an interest in its funds that they may object to a claim of another creditor to participate as a lienor in the assets. (Post, pp. 455, 456, 474.)
123 Tenn. 476Toncray v. Toncray (1910)
1. DIVORCE. Decree as to divorce granted in a sister State is net reviewable upon appeal from only that part awarding alimony. A decree of the lower court adjudging a divorce, obtained by the defendant husband in a ’sister State, upon constructive service by publication alone, without service of process on the wife, notice-to her, or appearance by her, to be valid only so far as it dissolved the marriage, and not to deprive the wife of the right to sue for alimony, is final so far as it is. not appealed from and the supreme court, upon the husband’s appeal from the decree in so far as it awarded alimony, must regard the balance of the decree as valid, and cannot adjudicate the status or effect to be given such foreign decree of divorce. (Post, pp. 481, 482.) 2. SAME. Decree for divorce can only be revised In the appellate court upon appeal. An appeal is the only mode of revising errors in a decree for divorce in the appellate court in this State. (Post, pp. 481, 482.)- 3. SAME. Our courts are not bound to recognize divorces obtained in other States on publication, but may recognize all' except alimony, when. A State is not bound, under the full faith and credit clause of the federal constitution, to recognize, as against its citizens, divorces obtained in other States on publication, at a place other than the matrimonial domicile; but each State may determine for itself what effect it will give to such decrees, arid the court may enforce a decree so far as it affects the marriage j status, and yet permit the wife domiciled in the State to sue [ for alimony. (Post, pp. 482-484, 491, 492.) Cases cited and approved: Richardson v. Wilson, 8 Yerg., 67; • Haddock v. Haddock, 201 U. S., 562. 4. SAME. Divorce without alimony, or alimony without divorce, may be decreed; no absolute connection between them. Under our statute (Shannon’s Code, sec. 4221), authorizing the court to award alimony, whether the divorce granted is absolute or only a temporary separation is decreed, a divorce may be granted without alimony, and alimony may be granted without a divorce; for there is, under this statute, no absolute connection between divorce and alimony. (.Post, p. 484.) Code cited and construed: See. 4221 (S.); sec. 3325 (M. & V.); sec. 2468 (T. & S.) and 1858). Cases cited and approved: Nicely v. Nicely, 3 Head, 184; Swan v. Harrison, 2 Cold., 634; McBee v. McBee, 1 Heisk., 558-561. 5. SAME. Wife domiciled here, where the matrimonial domicile is, may sue for alimony, after husband’s ex parte divorce obtained In a sister State. Where this State is the State of matrimonial domicile of the parties, the wife still domiciled in this State can maintain an action for alimony, although the husband had obtained an absolute divorce from her in an ex parte suit upon constructive service by publication in a sister State. (Post, pp. 481-493.) and especially p. 491.) Cases cited and approved: Richardson v. Wilson, 8 Yerg., 67; Plummer v. Hatton, 51 Minn., 181; Thurston v. Thurston, 58 Minn., 279; Rodgers v. Rodgers, 56 Kan., 483; Turner v. Turner, 44 Ala., 437; Cox v. Cox, 19 Ohio St., 602. Case cited, distinguished, and overruled to the extent it conflicts with this case: Thoms v. King, 95 Tenn., 60. 6. CONSTITUTIONAL LAW. Decision of federal supreme court on a federal constitutional question is conclusive upon the State courts. The supreme court of the United States is the ultimate expounder of the federal constitution, and its decision on a federal constitutional question is conclusive upon the State courts. (Post, p. 492.) 7. SAME. Conflict between the due process clause and the full faith and credit clause of the federal constitution as to ex parte divorces obtained in sister States. It is well nigh, impossible to formulate any rule respecting divorces obtained in ex parte suits upon constructive service by publication in sister .States that will conform equally to the due process clause of the federal constitution, on the one hand, and to the full faith and credit clause thereof, on the other hand. Neither of these constitutional provisions is.applicable to divorce proceedings of this character; for the State of the matrimonial domicile may, through its courts, give to a decree of divorce of that character rendered in a sister State such efficacy, within its own borders and as to its own citizens, as the decree may be entitled to in view of the State’s public policy. (Post, pp. 491, 492.) Case cited and approved: Haddock v. Haddock, 201 U. S. 662. 8. DIVORCE. Distinction between rights of wife In the State of the matrimonial domicile, and in other States. There is a marked distinction between the rights of the wife in the State of the matrimonial domicile, and in other States, which is fully discussed and established in the cases cited below. (Post, p. 493.) Cases cited and approved: Atherton v. Atherton, 181 U. S., 165; Haddock v. Haddock, 201 U. S., 662. 9. SAME. Statute depriving wife of alimony where the husband obtains the divorce Is not applicable where husband obtains the divorce in a sister State upon publication, when. The statute (Shannon’s Code, sec. 4226), providing that where the bonds of matrimony are dissolved at the suit of the husband, the defendant shall not be entitled to dower in his real estate, nor to any part of his personal estate; in case of his intestacy, nor to alimony, cannot be invoked in behalf of a husband and against his wife, a citizen of this State, so as to defeat her subsequent suit here for alimony, where the husband deserts the wife in this State, the State of the matrimonial domicile, and obtains a decree of divorce upon constructive service by publication in a sister State. (Post, p. 494.) Code cited and construed: Sec. 4226 (S.); sec. 3330 (M. & V.);' sec. 2473 (T. & S. and 1858). 10. SAME. Alimony may be allowed out of property acquired by husband in this State after he obtained a divorce upon publication in a sister State. Alimony is allowed the wife in recognition of the husband’s common law liability to support her, which liability is a continuing one, and a personal charge against him, so that our courts when called on to enforce it, may subject to its satisfaction any property which he owns at the time of the suit; and property acquired by the husband in this State after obtaining a divorce upon publication in a sister State may be subjected to the wife’s claim for alimony. (.Post, pp. 494, 495.) 11. SAME. Amount awarded, with attorneys’ fees, to absorb about half of the husband’s estate, when. A decree awarding alimony to a wife in her suit after her husband deserted her and obtained a divorce upon publication in a sister State, and there remarried and has a child of that marriage, should not absorb his entire estate; and the court will consider the rights of the second wife shown to be a worthy woman and child of the second marriage, and a decree of the chancery court absorbing the husband’s entire estate will be reduced so that alimony and the attorneys’ fees allowed will take about half of his estate. (Post, pp. 495, 496.)
123 Tenn. 497Mayor of Chattanooga v. Belt Railway Co. (1910)
1. COURT OF CIVIL APPEALS. Has appellate jurisdiction of a chancery suit to abate the occupation of a street as a nuisance. The court of civil appeals has appellate jurisdiction of a chancery suit to abate a railroad company’s occupation of a street, upon the ground that such occupation is a nuisance, and the supreme court is without appellate jurisdiction to entertain a direct appeal in such case;- for the statute (Acts 1901, ch. 82) creating the court of civil appeals, and (by its 7th section) defining its jurisdiction, and excluding therefrom, among others, ejectment suits in chancery cases involving more than one thousand dollars, does not deprive that court of its appellate jurisdiction in such case. Acts cited and construed: Acts 1907, eh. 82, sec. 7. 2. SAME. Same. Exclusion of chancery cases involving more than one thousand dollars from its jurisdiction applies only to suits seeking money recoveries. The provision in the statute (Acts 1907, ch. 82, sec. 7), excluding from the jurisdiction of the court of civil appeals those chancery cases involving more than one thousand dollars, applies only where the action is brought to recover a money judgment or direct money decree as the end or purpose of the litigation, and does not affect the other cases, though property of more than one thousand dollars in value is involved. {Post, pp. 499, 500.) Acts cited and construed: Acts 1907, ch. 82, sec. 7. Oases cited and approved: Brown v. Crystal Ice Co., 121 Tenn., 64; Mattox v. Btistol, 121 Tenn., 170. 3. SAME. Supreme court will transfer to the court of civil appeals causes of which it has the appellate jurisdiction. The supreme court will, under the statute (Acts 1909, ch. 192) authorizing such practice, transfer a cause,to the court of civil appeals, where the jurisdiction of the appeal lies in that court, and the appeal has improperly taken to the supreme court. (Post, p. 500.) Acts cited and construed: Acts 1909, ch. 192. 4. SAME. Its appellate jurisdiction does not prevent ultimate resort to the.supreme court. The statute (Acts 1907, ch. 82, sec. 7) giving the court of civil appeals appellate jurisdiction of certain cases does not deprive any litigant of an ultimate resort to the supreme court. (Post, p. 500.) Acts cited and construed: Acts 1907, eh. 82, sec. 7.
123 Tenn. 502State v. Watkins (1910)
1. DISTURBANCE OF PUBLIC ASSEMBLAGES. A misde- , meanor at common law. At common law it is a misdemeanor wantonly to disturb an assemblage of persons met together for any lawful purpose, particularly one of distinctly moral or benevolent character. (Post, pp. 504, 505.) Case cited and distinguished: Layne v. State, 4 Lea, 199. 2. SAME. Same. Statute does not abrogate the common law offense, other than those specifically mentioned. Our statute (Shannon’s Code, sec. 6776), punishing those disturbing any assemblage of persons meeting for religious worship, educational or literary purposes, or as a lodge for promoting temperance, does not abrogate the common law offense of disturbing an assemblage other than those specifically mentioned. . (Post, p. 505.) Code cited and construed: Sec. 6776 (S.); sec. 5663 (M. & V.); secs. 4853, 4853a (T. & S. and 1858). Case cited and distinguished: Layne v. State, 4 Lea, 199. 3. SAME. Same. Same. Disturbance of a Christmas tree celebration is a common law offense. The unlawful, willful, and intentional disturbance of an assemblage of persons met together for the purpose of a Christmas tree celebration is a common law offense not affected by the statute mentioned in the preceding- headnote. (Post, pp. 503, 505 -507.) Code cited and construed. Sec. 6776 (S.); sec. 5663 (M. & V.); secs. 4853, 4853a (T. & S. and 1858). Case cited and approved: Layne v. State, 4 Lea, 199. 4. STATUTES. Construed not to alter the common law further than they expressly declare or necessarily imply. A statute will not be construed to alter the common law further than it expressly declares, or necessarily implies from the fact that it covers the whole subject-matter. (Post, p. 506.) Case cited and approved: State v. Cooper, 120 Tenn., 553.
123 Tenn. 508Wester v. Hurt (1910)
1. PRIVY EXAMINATION. Married woman’s deed without privy examination is void, when; statutory form must be observed. The deed of a married woman living with, her husband, conveying her general estate in land, is void without her privy examination; for it is necessary that every material part of the 'statutory form of this examination be observed to make the probate of the deed valid upon its face. (.Post, p. 510.) Code cited and construed: Sec. 3753 (S.); sec. 2891 (M. & V.); sec. 2076 (T. & S. and 1858). 2. SAME. Same. Of a married woman to her deed is a judicial act, and establishes what. The action of the officer taking the separate acknowledgment, or privy examination, of a married woman to her deed conveying her general estate in land, is a judicial act, and establishes, by judicial force, that there was a personal interview between him and her, private and apart from her husband, and that the execution of the deed was confessed to have been made freely, voluntarily, and understandingly, and without compulsion or constraint from her husband, for the purposes therein expressed. (Post, p. 510.) 3. SAME. Certificate establishes probate of deed which cannot be attacked by extrinsic evidence, except for fraud of the grantee. When a deed of a married woman or other party has a certificate attached to it, containing all of the material parts prescribed by the statute (Shannon’s Code, sec. 3753), and signed by the proper officer, it establishes the probate of the deed as a matter of judicial determination, and this probate cannot be attacked by extrinsic evidence showing any mere irregularity, and it can only he overthrown by proof of fraud or duress, and by a causal connection of the grantee with the fraud. (Post, pp. 610, 511.) Code cited and construed: Sec. 3753 (S.); sec. 2891 (M. & V.); sec. 2076 (T. & S. and 1858). 4. SAME. Of a married woman as to acknowledgment of her deed cannot be taken by a telephone conversation. A married -woman’s privy examination, or separate acknowledgment to ker deed cannot be taken by a telephone conversation; for a personal interview in her physical presence is manifestly required by the statute- (Shannon’s Code, sec. 3753) to enable the officer to determine judicially that she has. executed the deed as required by law. The statutory form of the certificate precludes a construction which would authorize such acknowledgment to be taken over the telephone. (Post, pp. 510, 512.) Code cited and construed: Sec. 3753 (S.); sec. 2891 (M. & V.); sec. 2076 (T. & S. and 1858).
123 Tenn. 513Cincinnati, New Orleans & Texas Pacific Railway Co. v. Shelton (1910)
COSTS. Plaintiff recovering smaller judgment in circuit court than before the justice is the successful party entitled to full costs, when. A plaintiff, upon the defendant’s appeal, recovering a judgment in the circuit court for a smaller sum than he recovered before the justice of the peace, is the successful party within the meaning of the statute (Shannon’s Code, sec. 4938), and as such is entitled to full costs, especially where the defendant nowhere conceded his liability to the plaintiff, but defended against his liability, and resisted plaintiff’s recovery in both courts. The statute (Shannon’s Code, sec. 4962), providing that, in cases not embraced within the express provisions of the law, the court may make such disposition of the costs as, in' its sound discretion, may seein right, is inapplicable. Code cited and construed:. Sees. 4938, 4962’(S.); secs. 3921, 3945 (M. & V.); secs. 3197, 3220 (T. & S. and 1858). Case cited and approved: Gist v. YVebb, 1 Cold., 518. Case cited and overruled: Garrison v. Trotter, 114 Tenn., 526.
123 Tenn. 516J. W. Kelly & Co. v. State (1910)
1. STATUTES. Legislative intent is to be ascertained from the statute itself in connection with other statutes on the same subject, and not from strict and accurate definition of words. In tlie construction of a statute, the inquiry is not what is the strict and accurate definition of words according to accepted usage and the approved authority of the lexicographers, but the 'sole question is what was the legislative intent, which must he ascertained from an examination of the statute itself, in connection with, other statutes in pari materia, and in the light of the history of the system of legislation of which it is a part. (Post, pp. 527, 528.) 2. SAME. All beverage sales of Intoxicating liquors are prohibited; general and promiscuous sales in whoesale quantities by manufacturers to dealers that may finally reach the consumer are beverage sales; word “sale,” “tipple,” and “or” defined. In view of the prior legislation prohibiting and regulating the sale of intoxicating liquors, the word "sale” in the title of the statute (Acts 1909, ch. 1), expressing the subject of legislation as the prohibition of the “sale” of intoxicating liquors as a beverage near any schoolhouse, where school is kept, whether the school be in session or not, is used in its common and ordinary 'sense, and includes all sales except nonbeverage sales, without regard to their form or character; and the word “tipple,” used in the first section of the body of the statute, declaring it unlawful “to sell or tipple” any intoxicating liquors as a beverage within four miles of such schoolhouse; denotes a subdivision of the more comprehensive term “sale,” as used in the title, and its equivalent “to sell,” as used in the body; and the conjunction “or” connecting the words “sell” and “tipple” is used in a disjunctive sense, and the prohibition is not against tippling sales alone, but against any other sales as well; and the words “as a beverage,” as used in said title and first section, do not restrict tlie word "sale” so as to confine the prohibition to sales for consumption by the immediate purchaser, but the prohibition extends to all sales of intoxicating liquor to be finally used, when it reaches the consumer, as a beverage, 'so that a sale of in-toxicáting liquors, in wholesale quantities, by a manufacturer thereof to a wholesaler, with only a general and promiscuous purpose, includes or constitutes a beverage sale, within the prohibition of the said statute. (Post, pp. 525-544, and especially pp. 536-538, 549, 550.) 'Code cited and construed: Secs. 2567, 6780 (S.); secs. 2011, 5667 (M. & V.); secs. 1512, 4857 (T. & S. and 1858). Acts cited and construed: Acts 1909, ch. 1, in connection with previous Acts 1868-69, ch. 45,-secs. 5 and 18; Acts 1870, ch. 51; Acts 1877, ch. 23; Acts 1887, ch. 167; Acts 1899, ch. 221; Acts 1903, ch. 2; Acts 1905, ch. 422; Acts 1907, ch. 17; Acts 1909, chs. 14 and 479. Cases cited and approved: State v. Odam, 2 Lea, 221; State v. Staley, 3 Lea, 566; Dodson v. State, 5 Lea, 274; Harney v. State, 8 Lea, 114; Lea v. State, 10 Lea, 480; State v. Lowenhaught, 11 Lea, 13; State v. Tarver, 11 Lea, 658; Harrison v. State, 96 Tenn., 548; Kidd v. Pearson, 128 TJ. S., 1-19. 3. INTOXICATING LIQUORS. Proof of sale shifts burden to defendant to prove that sale was not as a beverage; sale by wholesale does not negative a sale as a beverge. Proof of the sale of intoxicating liquors by a defendant under indictment for selling such liquors within four miles of a schoolhouse where a school was kept, which is within the prohibition of Acts 1909, ch. 1, if the liquor was sold as a beverage, shifts the burden to the defendant to prove that the sale was not as a beverage, but for some other lawful purpose; and the fact that the sale was by wholesale or in a large quantity to be distributed by the buyer to the public generally for all purposes does not negative a purpose on the part of such seller that it was sold as a beverage. (Post, p. 540.) Acts cited and construed: Acts 1909, ch. 1. 4. STATUTES. Exception indicates that the subject thereof would be included within the general provision but for the exception; debates and circumstances in passage of law as to its construction. The general rule for the construction of 'statutes is that the exception indicates the extent of the general provision, and proves that, in the opinion of the legislature, the thing excepted would he within the general clause, had the exception not been made; and where the first section of a statute (as Acts 1877, ch. 23 and Acts 1887, ch. 167) declares that it shall be unlawful to sell or tipple intoxicating liquors within certain territory, and the second section of the same statute declares that the statute shall not apply to sales by manufacturers of such liquors in wholesale quantities, the said exception in such second section indicates that all other sales' are within the prohibition of the first section, and that such sale by the manufacturer would be within such prohibition, if it were not for the exception; and it would require the strongest showing in the debates at the time the act wa's passed, and in the circumstances surrounding its passage, to induce the court to hold that the exception was introduced merely as a result of overcaution. (Post, pp. 540-543.) .Acts cited and construed: Acts 1877, ch. 23, secs. 1 and 2; Acts. 1887, ch. 167, secs. 1 and 2. Cases cited and approved: Gibbon v. Ogden, 22 U. S., 191; Brown v. Maryland, 25 Ü. S„ 419. 5. CONSTITUTIONAL LAW. Exception In favor of sales by manufacturers of intoxicating liquors against wholesale dealers who are not manufacturers is natural, reasonable, and just, and not arbitrary. Acts 1887, ch. 167, is not unconstitutional, because its first 'section prohibits the sale of intoxicating liquors, in both retail and wholesale quantities, within four miles of a schoolhouse; and its second 'section makes an exception in favor of sales in wholesale quantities or packages by the manufacturer, upon the ground that the distinction in favor of the manufacturers and against the wholesale dealers who are not manufacturers is unreasonable and arbitrary; for the distinction is natural, reasonable,. and just, in view of the nature of the two occupations, and of the further exception in favor of all sales within the limits of any incorporated town. {Post, pp. 523, 544-546.) Acts cited and construed: Acts 1887, ch. 167, secs. 1 and 2. 6. SAME. “Near” in the title of a statute warrants the distance of four miles in its body prohibiting the sale of intoxicating liquors. The statute (Acts 1909, ch. 1) prohibiting the sale of intoxicating liquors is not unconstitutional upon the ground that its body is broader than its title, in this that its title expresses the subject, of legislation as the prohibition of the sale of intoxicating liquors as a beverage near any schoolhouse, where a school is kept, whether it be in session or not, and its body prohibits such sales within four miles of such a schoolhouse, especially since the legislative definition of four miles has been repeatedly given to the word “near” by such provisions made under a like title; for the word “near” is a relative term, with a variable meaning, the proper import of which is dependent upon the sense and connection in which it is used, considered together with the purpose to be accomplished. {Post, pp. 522, 546-549.) Acts cited and construed: Acts 1909, ch. 1. Constitution cited and construed: Art. 2, sec. 17. Case cited and approved: Hadley v. Turnpike Co., 2 Humph., 555. 7. SAME. Statute prohibiting wholesale sales of intoxicating liquors is not unconstitutional as being broader than its title limited to beverage sales; beverage and nonbeverage sales stated. A statute (Acts 1909, ch. 1) whose title limits the scope of legis- • lation to the prohibition of the sale of intoxicating liquors as a beverage is not unconstitutional upon the ground that its body is broader than its title, where the provision in its body is construed to prohibit sales in wholesale quantities, because such liquors so sold may be intended for ultimate consumption as a beverage. Sales of intoxicating liquors made by druggists upon tbe prescription of a physician, sales for mechanical, medical, sacramental, chemical, scientific, and like purposes are nonbeverage sales, and all other sales are beverage sales. (Post, pp„ 522, 546-550.) Constitution cited and construed: Art. 2, sec. 17. 8. SAME. Act not appearing or purporting to be an amendatory act is not required to recite the title or substance of the law amended. The statute (Acts 1909, ch. 1), prohibiting the sale of intoxicating liquor, as a beverage within four miles of any schoolkouse, is not an amendatory act, requiring the recital of the title or substance of the law sought to be amended; for it does not appear or purport to be an amendatory act, but is .of and within itself a complete treatment of the subject of legislation with which it deals. (Post, pp. 522, 546, 550, 551.) Acts cited and construed: Acts 1909, ch. 1. Constitution cited and construed: Act 2, sec. 17. Cases cited and approved: Terrell v. State, 86 Tenn., 523; Zickler v. Bank, 104 Tenn., 277; State, ex rel., v. Taylor, 119 Tenn., 253, 254. 9. SAME. Only citizens affected by a statute can attack its constitutionality upon the ground that it takes property' without compensation or due process of law. A manufacturer of intoxicating liquors indicted and prosecuted for selling such liquors, within four miles of a schoolhouse where a school was kept, in violation of the statute (Acts 1909, ch. 1) prohibiting such 'sales, as a beverage, is not in a position to attack the statute as unconstitutional upon the ground that it takes property without compensation and without due process ’of law, where the statute allows more than five months between the time of its passage and the time of its going into effect to dispose of the liquors on hand, which time is presumed to be ample time for tliat purpose, and where it is not shown that the liquor so sold was on hand when the law was passed, or what particular efforts were made to dispose of that on hand, or how much was disposed of; and the testimony of the president of the defendant- corporation, given in response to a very leading question, that it had made every effort to dispose of its liquors at a fair price is not sufficient to- show the required efforts. (Post, pp. 546, 551-555.) Acts cited and construed: Acts 1909, ch. 1. Constitution of the State cited and construed; Art. 1, secs. 8 and 21. Constitution of the United States cited and construed: 5th and 14th ams. Cases cited and approved: State v. Burgoyne, 7 Lea, 173.
123 Tenn. 556State v. J. W. Kelly & Co. (1910)
1. SALES OF PERSONALTY. Contract is complete and the title passes, without delivery, as soon as the terms are agreed upon, when; otherwise where there are express conditions. The general rule in this State, with regard to the sale of personal property, is that the sale is complete and the.title passes, as •soon as the parties have agreed upon the terms, and that delivery is not essential to the passing of title, where nothing remains to he done in weighing or measuring the goods in order to separate them from the mass, or to ascertain the quantity ■thereof and the amount due therefor; for, in such case, the title ■does not pass until the weighing, measuring, and separating is completed; hut delivery or prepayment of the purchase price may he made express condition's, and, under such a contract, the title does not pass until delivery or payment is made. (.Post, pp. 562, 563.) Oases cited and approved: Shaw v. Smith, 9 Yerg., 97; Potter v. •Coward, Meigs, 22; Miller v. Koger, 9 Humph., 231, 236; Williams v. Allen, 10 Hum., 337; Shaddon v. Knott, 2 Swan, 358, 361-364; Broyles v. Lowrey, 2 Sneed, 23; Williams v. Adams, 3 Sneed, 359, 363, 364; Bush v. Barfield,'1 Cold.,. 93, 95; Fitzpatrick v. Fain, 3 Cold., 15, 19; Bond v. Greenwald, 4 Heisk., 460, 463; Barker v. Reagan, 4 Heisk., 590; Railroad v. Ford, 11 Heisk., 388, 390; Rawls & Griffis v. Patterson, 1 Bax., 372; Harding v. Metz, 1 Tenn. Chy., 610; Goodrich v. Edmundson, 1 Tenn. Cas., 584; Spurlock v. Gill, 3 Tenn. Cas., 43, 45; Barker v. Freeland, 91 Tenn., 112, 117; Mayberry v. Mill Co., 112 Tenn., 568; Hardwick v. Can Co., 113 Tenn., 676. 2. SAME. Same. Order by mail and delivery to common carrier completes sale and passes title to purchaser, when. Where goods are ordered through the mail, it is necessary to the completion of the contract that the assent or acceptance of the person of whom they are ordered he communicated to the person making the order, which may be done directly, or by filling the order and delivering the goods to a common carrier to be transported to the person making the order; and when it is done by delivery to the carrier, the sale is complete, and the title, as a general rule, passes upon such delivery; for, in such case, the carrier is treated as the agent of the person making the order. (Post, pp. 563, 564, 565, 571.) Cases cited and approved; Boyd v. Mosely, 2 Swan, 661; Mills v. Bank, 9 Lea, 314, 317; Brooks v. Paper Co., 94 Tenn., 701, 710; Charles v. Carter, 96 Tenn., 607; Katzenberger v. Leedom, 103' Tenn., 150; The Venus, 8 Cranch, 253, 275; The Prances, 9' Cranch, 183; The Mary & Susan, 1 Wheat., 25; Hatch v. Standard Oil Co., 100 U. S., 124; Trounstine v. Sellers, 35 Kan., 447;; Machine Co. v. Markert, 107 Iowa, 340; Main v. Tracey, 86 Ark., 27; Kelsea v. Ramsey, 55 N. J. Law, 320; State v. Rosenberger, 212 Mo., 648; Bennett v. Express Co., 83 Me., 236. 3. INTERSTATE OR FOREIGN COMMERCE. Its character attaches upon delivery to a common carrier for continuous transportation to a point beyond the State. When a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip to a point beyond the limits of the State where delivered, the character of interstate- or foreign commerce attaches. (Post, pp. 564, 565.) Cases cited and approved: The Daniel B'all v. United States, 10 Wall., 557, 566; Coe v. Errol, 116 U. S., 517; Vance v. Vander-cook, 170 U. S., 438, 444; .Heymann v. Railroad, 203 U. S., 273; Express Co. v. Kentucky, 206 U. S., 129; General Oil Co. v. Crain,. 209 U. S., 229; Koehler, Ex parte, 30 Fed. (C. C.), 30; Greene,. In re, 52 Fed. (C. C.), 113; Navigation Co. v. Insurance Co., 89' Tex., 1. 4. INTOXICATING LIQUORS. State may prohibit their sale within its limits, under its police power when not conflicting) with the Interstate or foreign commerce power of congress. The State has the right, under its police power when not conflicting with the interstate or foreign commerce power of congress, to prohibit the sale of intoxicating liquors within its borders;. for tlie independence of the police power and of the commerce power and the delimitation between them must always he recognized and observed, and when they conflict, the State’s police power must yield to the commerce power of congress. (.Post, pp. 565, 566, 575.) Cases cited and approved: Bartemeyer v. Iowa, 18 Wall., 129; Henderson v. New York, 92 U. S., 259; Railroad v. Husen, 95. U. S., 465; Boston Beer Co. v. Massachusetts, 97 U. S., 25; Foster v. Kansas, 112 U. S., 205; Gaslight Co. v. Light Co., 115 XT. S., 650; Walling v. Michigan, 116 U. S., 446; Schmidt v. Cobb, 119 U. S., 286; Smith v. Alabama, 124 U. S., 465; Kidd v. Pear'son, 128 U. S., 1; Leisy v. Hardin, 135 U. S., 100; Lyng v. Michigan, 135 U. S., 161; United States v. Knight, 156 U. S., 1; Schol-lenherger v. Pennsylvania, 171 U. S., 18; Arkansas v. Coal Co., 183 U. S., 185, 189; Rofhelmel v. Meyerle, 9 L. R. A., 366, note and cases cited. 5. SAME. Proper subjects of commerce. The United States has recognized intoxicating liquors as proper subjects of commerce. (Post, p. 566.) Cases cited and approved: Bowman v. Railroad, 125 U. S., 465; Wilkerson v. Rahrer, 140 U. S., 545; Rhodes v. Iowa, 170 U. S., 412; Vance v. Vandercook, 170 U. S., 438; Express Co. v. Iowa, 196,U. S., 133; Heymann v. Railroad, 203 U. S., 270; Express Co. v. Kentucky, 206 U. S., 129. 6. INTERSTATE COMMERCE. Sale of intoxicating liquor completed by delivery to a common carrier for continuous transportation to another State is protected as such commerce. The sale of intoxicating liquor by the acceptance of a mail order from a person in another State, which acceptance is manifested by the delivery of the liquor to a common carrier for continuous transportation to the purchaser, which act of such delivery completed or closed the contract is not a violation of the statute (Acts 1909, ch. 1) prohibiting the sale of intoxicating liquors within four miles of a schoolhouse, because such act places the liquor under the protection of the interstate commerce clause of the federal constitution. (Post, pp. 565, 569-575.) Acts cited, and construed: Acts 1909, ch.. 1. Constitution of the United States cited and construed: Art. 1, sec. 8, cl. 3. Cases cited and approved: Ober v. Smith, 78 N. C., 313; Railroad v. Barnes, 104 N. C., 25; Pruden v. Railroad, 121 N. C., 509. Cases cited and distinguished: Geer v. Connecticut, 161 U. S., 519; Silz v. Hesterherg, 211 U. S., 31; State v. Groves, 121 N. C., 632; Tredway v. Riley, 32 Neb., 495; Ames v. Kirby, 71 N. J. Law, 442. 7. SAME. The Wilson law does not apply to the sale and shipments of Intoxicating liquors out of the State, but only to shipments into the State. The Wilson law (act of congress of August 8, 1890,. ch. 728, 26 Stat., 313) has reference only to intoxicating liquors brought into the State, and makes them immediately subject to the laws of the State, enacted in the exercise of its police power, independent of the question of interstate commerce, and does not affect the question of a sale in one State, completed by delivery of the liquor to a common carrier there for continuous transportation to another State to the person who ordered it from ■ such State by mail, as against the law of the State in which such sale was made, prohibiting the sale of intoxicating liquors, because such sale is within the protection of the interstate commerce clause of the federal constitution. (Post, pp. 566-568.) Acts cited and construed: Acts 1909, ch. 1. Cases cited and approved: Rahrer, In re„ 140 U¡ S., 545. Cases cited and distinguished: Brewing Co. v. C'rewshaw, 198 U. S., 17; Poppiano v. Speed, 199 U. S., 501, 516; Delameter v. .South Dakota, 205 U. S., 93; Rose v. State, 4 Ga. App., 588; State v. Publishing Co., .104 Me., 288.
123 Tenn. 577Bransford Realty Co. v. Andrews (1910)
1. CORPORATIONS. Evidence of what the officers understood from the charter and by-laws to be the place of the domicile or chief office is incompetent and immaterial. Where the charter of a corporation does not locate the domicile of the corporation further than that it shall he in a certain county, and the by-laws merely provide that it shall have its chief office in the county, and such branch offices as may be necessary, evidence that the officer of the corporation understood by the language of the charter and by-laws that the head office was to be in said county, outside of the city, or as distinguished from the city, is incompetent and immaterial. (Post, p. 580.) 2. SAME. Place of domicile or chief office for purpose of taxation of tangible and intangible personalty. Where the charter and by-laws of a realty corporation dp not locate the domicile or chief office thereof further than that it shall be in a certain county, and the evidence shows that once a year a stockholders’ meeting was held at the residence of the president in said county, but outside of the city, for the election of directors; that the president gave to the business of the corporation several hours’ thought every day at his said residence; that the president negotiated and made many sales at his said residence, which he had the power to do without consulting the directors; that the board of directors uniformly met at an office in the city, fixed as the office of the corporation by all the advertisements and return cards upon its mail matter and letter-heads; that very important business was transacted at this city office; that everything done by the governing agency, the board of directors, was done there; that such office was designated in the minutes as the office of the corporation until the litigation arose; that it was at this office that the governing agencies originated policies, managed and controlled the business of the corporation; that the bulls of the management was had and exercised at such city office, it was held that the location of the domicile or chief office of the corporation is in the city, and not at the president’s house outside of the city, for the purpose of the taxation of the corporation’s tangible and intangible personalty, and especially of its intangible personalty. (Post, pp. 580-583.) Case cited and approved: ’ Grundy Co. v. Tennessee Coal, etc., Co., 94 Tenn., 295, 309. 3. CHANCERY PLEADING AND PRACTICE. City may file and maintain cross bill for recovery of taxes in a taxpayer’s unsuccessful suit to enjoin collection of taxes. Where a private corporation files a bill against a municipal corporation and its proper officers to enjoin the collection of taxes under a distress warrant, the municipal corporation may file and maintain a cross bill for the recovery of the.' amount of tlie taxes, with interest, and the penalty fixed by ordinance, under the assessment of taxes, where the complainant was legally liable therefor and was not entitled to any injunctive or other relief against the collection thereof. (Post, pp. 679, 680, 583.)
123 Tenn. 584Great Falls Power Co. v. Webb (1910)
1. EMINENT DOMAIN. Petition for condemnation is taken as true upon demurrer. The allegations of tbe petition for the condemnation of lands must .be taken as true upon demurrer thereto. {Post, pp. 590, 594.) 2. SAME. Supplying electricity for light, heat, and motive power to the public Is a public use. The supplying of electricity for light, heat, and motive power to-all who desire it is á public use, and land necessary to obtain a sufficient water power to generate electricity for such use may be condemned under the eminent domain laws by a corporation chartered and organized under our corporation laws for such purpose. {Post, pp. 586-594.) Acts cited and construed: Acts 1901, ch. 144; Acts 1909, chs. 127 and 151. Constitution cited and construed: Art. 1, sec. 21. Cases cited and approved: Ryan v. Terminal Co., 102 Tenn., 116-118, 122; Jones v. Electrical Co., 125 Ga., 618; Light & Power Co. v. Hobbs, 72 N. H., 531; Power Co. v. Spratt, 35 Mont., 108; Walker v. Power Co., 160 Fed., 856, 87 C. C. A., 660; Minnesota, etc., Co. v. Koochiching, 97 Minn., 429; In re Niagara, etc.,. Power Co., Ill App. Div., 686. 3. SAME. Right or power is not defeated by incidental charter power to engage in private enterprises. A corporation’s mere possession of incidental charter powers to engage in private enterprises will not deprive it óf the right or power of eminent domain, conferred upon it to facilitate and effectuate its public purposes and functions, in a particular case where it is seeking to condemn land for. the promotion of the public uses which it is authorized to undertake. (Post, pp. 594-596.) Cases cited and approved: . Collier v. Railroad, 113 Tenn., 121; Phosphate Co. v. Phosphate Co., 120 Tenn., 260, 275; Walker v. Power Co., 160 Fed., 856; Brown v. Gerald, 100 Me., 351. 4. SAME. No presumption that land is sought for private purposes upon demurrer to petition alleging that it is desired for a public use. A petition for the condemnation of land by a corporation chartered and organized under our general corporation laws, and more especially under Acts 1901, ch. 144, and Acts 1909, chs. 127 and 151, which states that it desires the land in connection with its works for the production of electricity for the use and benefit of the public, including enumerated cities, for street lighting, and to all citizens thereof who may wish electricity, at a uniform rate, alleges a desire to acquire the land for a public use, and the court cannot presume, upon demurrer to the petition, that the corporation is seeking the land for purposes other than those stated. (Post, pp. 586-595.) 5. CORPORATIONS. Legislature may fix rates and make duties more specific. Where a corporation and its property are affected by a public use, it will be under governniental control, and the legislature may ■ at any time make more specific the duties clearly implied from the act of incorporation, and fix the rates for the services rendered. (Post, p. 597.) * Cases cited and approved: Crumley v. Water Co., 99 Tenn., 420; Water Co. v. Wolfe, 99 Tenn., 429; Munn v. Illinois, 94 U. S., 113; Budd v. New York, 143 U. S., 517; Brass v. North Dakota, 153 U. S., 391. 6. SAME. Admission and judicial determination that the business is affected with a public use gives legislature power to regulate an electricity corporation. Where a corporation asserts that its business of supplying electricity to all who may desire it is affected by a public use, and in that character it seeks to exercise the power of eminent domain, and the court sustains its contention that it possesses the power, it is thus both admitted and judicially determined that its business is affected with a public use, and the right of the legislature to regulate its rates and services, and to prevent discrimination, is as complete as though such right was expressly reserved in its charter. (Post, p. 597.)
123 Tenn. 598Meadows v. Gosnell (1910)
1. ACKNOWLEDGMENT. Oath of notary public to correction ofr certificate is properly made before the clerk of the county court. Under the statute (Shannon’s Code, section 3759) providing that the correction of a certificate of acknowledgment shall be “by oatlj in open court to the truth of such correction,” the oath of the notary public taking the acknowledgment may be made before the clerk of the county court, and need not be made before the county judge. (Post, p. 602.) Code cited and construed: .Sec. 3759 (S.); sec. 2896 (M. & V.); sec. 2082 (T. & S. and 1858). 2. SAME. Notary public taking acknowledgment and making defective certificate may make oath as to correction. The oath required for the amendment and correction of a defective certificate of acknowledgment may be made by the notary public who took the acknowledgment and made the defective certificate. (Post, p. 602.) Case cited and approved: Brinkley v. Tomeny, 9 Bax., 275. 3. SAME. Minute entry as to oath and correction of defective acknowledgment is not required. It is 'not necessary that an entry as to the oath and correction of a defective certificate of acknowledgment be made upon the minutes of the county court. (Post, p. 602.) Cases cited and approved: Grotenkemper v. Carver, 4 Lea, 375, 379; Madden v. Mason, 106 Tenn., 194, 200. 4. SAME. Oath and corrected certificate may be shown by certified copy made by the clerk of the county court before whom they were made. The oath of a notary public made in open court for the correction of a defective certificate of acknowledgment and the corrected certificate may fie shown by a certified copy of the record thereof made by the clerk of the county court before whom the oath was taken and the correction made, and the same need not be shown by a certified copy of the court’s minute record. (.Post, pp. 601, 602.)
123 Tenn. 603Street v. Waller (1910)
APPELLATE JURISDICTION. Demand for money judgment exceeding one thousand dollars, whether in original or cross bill, when not sought merely as incidental relief, confers appellate jurisdiction upon supreme court. 'A demand for a money judgment exceeding one thousand dollars in a chancery cause, asserted either by the complainant, or by tlie defendant in a cross bill, unless such relief is sought as a mere incident to the main case governed by a different rule, confers appellate jurisdiction upon the supreme court, and not upon the court of civil appeals; for it is immaterial by which party such judgment is sought. See Acts 1897, ch. 82, sec. 7.
123 Tenn. 605Harris v. Beasley (1910)
1. CHANCERY JURISDICTION. To subject judgment debtor's equity in land to his debts upon nulla bona return of execution unsatisfied. A judgment creditor, after a nulla dona return of an execution unsatisfied, may reach the equity of. his debtor in real estate by a bill in chancery against such debtor and the other persons holding a trust on such property. (Post, pp. 607, 608.) .Code cited and construed: Sec. 6091 (S.); sec. 5025 (M. & V.); sec. 4282 (T. & S. and 1858). Cases cited and approved: Fulghum v. Cotton, 6 Lea, 590; Schultz v. Blackford, 9 Lea, 434; Wessel v. Brown, 10 Lea, 685. 2. SAME. Same. Lien is created by the filing of the bill with description of the land, and statement for relief, even before service of process. Where a judgment creditor, after a nulla dona return of an execution unsatisfied, files a bill in chancery to subject his debtor’s equity in land to the payment of such judgment, the filing of the bill describing the land, and stating a case for such form of relief, fastens a lien upon the .property, which lien becomes operative immediately upon the service of process upon the debtor after the filing of the bill, and such lien will not be affected by the debtor’s sale of his interest in the land to the holders of the trust deed, made on' the next day, and even before service of process upon them; for the lien attaches upon the filing of the bill, and the service of process is not prerequisite to the creation of the lien. (Post, pp. 608-615.) Code cited and construed: Sec. 6095 (S.); sec. 5029 (M. & V.); sec. 4286 (T. & S. and 1858). Cases cited and approved: Tharp v. Dunlap, 4 Heisk., 686; Williams v. Williams, 11 Lea, 363; Woolridge v. Boyd, 13 Lea, 161; Staples v. White, 88 Tenn., 30; Bridges v. Cooper, 98 Tenn., 381, 384, 392. 3. SAME. Same. Same. After judgment creditor’s bill is filed to reach surplus by sale of the debtor’s land incumbered with mortgage trust, the trustee cannot sell the land. Where a judgment creditor, after a nulla bona return of an execution unsatisfied, files a bill in chancery to sell the debtor’s land incumbered with a mortgage or deed of trust, in order to reach the surplus and subject it to the payment of his judgment, not only is a lien created, but the trustee under the deed of trust has no right to sell the land after the filing of such bill, even though no injunction be ordered; for no defendant to such bill has the power to defeat the court’s jurisdiction at his will, by taking the property from under the lien and disposing of it out of court. (Post, pp. 609-614.) Cases cited and approved: Fulghum v. Cotton, 6 Lea, 590; Schultz v. Blackford, 9 Lea, 434; Bridges v. Cooper, 98 Tenn., 381, 384, 392. Cases cited, distinguished, and overruled to extent of conflict: Porter v. Duke, 99 Tenn., 24, 27; McClurg v. McSpadden, 101 Tenn., 433, 435, 436. 4.. SUPREME COURT PRACTICE. Hearing and decision upon record and briefs where certiorari is granted to bring up a case from the court of civil appeals. Where a certiorari is granted to bring a case from the court of civil appeals into the supreme court, the cause may be there heard upon the record and the briefs filed, and a decision maybe rendered and a decree entered, without further argument or hearing. (Post, p. 616.)
123 Tenn. 617Nashville Trust Co. v. First National Bank (1910)
1. LIFE INSURANCE. Subject to disposition, by assignment or will of insured, when payable to his executors, administrators, or assigns; but not, when payable to his widow and heirs, or to his legal heirs. Life insurance effected by a husband and father upon his own life, by a policy payable to his executors, administrators, or assigns, is subject to his disposition by will or assignment, and the insured is not deprived of this power by the statute (Shannon’s Code, section 4030) providing that such insurance shall inure to the benefit of the widow and next of kin, to be distributed as personal property, free from the claims of his creditors; but where the policy is payable to the widow and heirs, or to his legal heirs, they take a vested interest, and the husband cannot defeat their interest by assignment or will. (Post, pp. 620-624.) Code cited and construed:. Sec. 4030 (S.); sec. 3135 (M. & V.); sec. 2294 (T. &'S. and 1858). Acts cited and construed: Acts 1845-46, ch. 216, sec. 3. Cases cited and approved: Rison v. Wilkerson, 3 Sneed, 566; Williams v. Carson, 9 Bax., 516; Gosling v. Caldwell, 1 Lea, 455; Catholic Knights v. Kuhn, 91 Tenn.; 214. 2. SAME. Policy payable to insured’s legal representatives, and not disposed of by him, goes to his widow and next of kin regardless of solvency or insolvency of his estate. Where a life policy is made payable to the legal representatives of the insured, and he dies without making any disposition of the policy, the claims of his widow and next of kin, whether the latter axe children or other kin falling within the terms of the statute, will, under said statute (Shannon’s Code, section 4030), prevail over his general creditors, whether his estate is solvent or insolvent, and though the policy was issued before his marriage. .(Post, p. 624.) Code cited and construed: Sec. 4030 (S.); sec. 3135 (M. & V.); sec. 2294 (T. & S. and 1858). Acts cited and construed: Acts 1845-46, ch. 216, sec. 3. Cases cited and approved: Collier v. Latimer, 8 Bax., 420; State, for use, v. Anderson, 16 Lea, 338; Jackson v. Shelton, 89 Tenn., 82; Harvey v. Harrison, 89 Tenn., 476; Rose v. Wortham, 95 Tenn., 507. 3. SAME. Policy payable to insured’s executors, administrators, or assigns, and assigned by him leaves a mere equity in him, and his widow and children can have no higher rights. ■Where a life policy, procured by a husband and father upon his own life, is made payable to his executors, administrators, or assigns, and he makes an assignment thereof, absolute in form, but in fact made to secure the payment of a particular debt, the legal title to the policy is vested in the assignee, and the insured’s interest in it thereafter is an equity, pure and simple; and where, after the payment of the particular debt, he permits the policy to remain in the hands of the assignee as a- general collateral under the original assignment to secure any amount he might from time to - time owe the assignee, the widow and children of the insured are clothed only with the equity, ahd are not entitled to recover the proceeds of the policy from the assignee, without paying the debts due from the insured to the assignee. (Post, pp. 625, 626.) 4. PLEDGES. Distinctive characteristics; . possession and special property in pledgee; foreclosure or private sale. The distinctive characteristic of a pledge or deposit of collateral security for a debt is that it must be delivered to the pledgee, actually or constructively, under an agreement that it shall be held by the pledgee as security for some debt or engagement of the pledgeor; but the pledgee acquires only a special property, with the right to possession until the object of the pledge is accomplished, and though, if the pledgeor makes default the pledgee may foreclose in chancery or may sell on reasonable notice, without judicial process, hut the absolute title of the pledgeor is not divested until such foreclosure or sale. ,(Post, 626.) Case cited and approved: Johnson v. Smith, lr Humph., 397. 6. LIFE INSURANCE. Insured assigning policy to secure debts to assignee is estopped to recover it, without the payment of all debts contracted. Where the insured assigned and absolutely transferred a life policy, payable-to his executors, administrators, and assigns, for the purpose of securing a particular debt, and subsequently permitted the policy to remain in the hands of the assignee, and repeatedly agreed that it should stand as security for any amount for which he might become, from time to time, indebted to the assignee,- the insured will be estopped from securing possession of the policy without the payment of the indebtedness incurred on the faith and credit of the policy as security. (Post, pp. 626, 627.) 6. SAME. Oral assignment of a life policy is valid. The assignment of a life insurance policy is not required to be in writing to be valid, and an oral assignment is valid under our law; for it is governed by the rule applicable to ordinary simple contracts. (Post, pp. 627, 628.) Case cited and approved: Box v. Lanier, 112 Tenn., 403. 7. WITNESS. In suit of a guardian and administrator against a corporation to recover the proceeds of life policy on decedent’s life, the president of the corporation, if not a party to ' the suit, is a competent witness. Where guardian of the children of a decedent, and his widow as administratrix-of his estate and individually sues a corporation for the proceeds of a life insurance policy on the life of the decedent, the president of the corporation is competent to testify as to transactions with the intestate, because he is not a party to the suit. (Post, pp. 622, 628.)
123 Tenn. 629Louisville & Nashville Railroad v. Beasley (1910)
1. RES ADJUDICATA. Suit in which judgment for plaintiff was arrested for defect in substance in pleading cannot be pleaded in bar of another action. The proceeding in an action wherein the judgment for plaintiff was arrested in the circuit court for defect in matter of substance in the statement of the cause of action in the justice’s warrant cannot be successfully pleaded as res adjudieata in bar of another action for the same cause of action.- Code cited and construed: Secs. 4446, 4585 (S.); secs. 3449, 3756 (M. & V.); secs. 2755, 2865 (T. & S. and 1858). Case cited and approved: Railroad v. Flood, 122 Tenn., 56. i. ARREST OF JUDGMENT. For matter of substance in an action otherwise valid entitles plaintiff to a new action within a year. The statute (Shannon’s Code, section 4446) providing that where the judgment rendered in favor of the plaintiff is arrested, he may commence a new action within one year after the arrest, was primarily intended to prevent the bar of the statutes of limitations in the cases mentioned, but it necessarily implies the existence of a cause of action otherwise valid; and, moreover, contemplates a case wherein a motion in arrest of judgment was granted for matter of substance, because under another statute (Shannon’s Code, section 4585) motions in arrest of judgment for matters of form in civil suits are abolished. Code cited and construed: Secs. 4446, 4585 (S.); secs. 3449, 3576 (M. & V.); secs. 2755, 2865 (T. & S. and 1858).
123 Tenn. 633De Glopper v. Nashville Railway & Light Co. (1910)
1. PERSONAL INJURIES. Plaintiff must prove injuries resulting from negligent breach of a duty owed to him. A plaintiff suing for a personal injury negligently inflicted by the defendant must establish, by a preponderance of the testimony, (1) a duty which the defendant owes to him, (2) a negligent breach thereof, and (3) injuries received thereby, resulting proximately from such breach of duty. (Post, pp. 642, 643.) 2. SAME. Same. ■ Burden is on plaintiff to prove injuries from negligent breach of duty owed him, either directly or indirectly. Where a plaintiff, suing for a negligent personal injury, avers that the duty which the defendant owed him arose out of a particular relationship, or that the negligence constituting its breach consisted of a particular act, omission, or thing, he must prove his case substantially as alleged, either by direct testimony of witnesses who know the facts, or by direct proof of indirect, hut correlated, facts from which the duty owing him, the injury done him, the negligence of defendant, and its proximate causal connection with the injury may be reasonably inferred. (Post, p. 643.) ' 3. SAME. Mere fact of injury never raises a presumption of negligence; but accident that does not ordinarily happen ■ under proper care shows want of proper care. When such method of establishing a liability is resorted to, negligence is never inferred from the mere fact of injury, because the mere fact of injury never raises a presumption of negligence; but the act causing the injury and defendant’s negligence and the injury must all be shown, and the nexus between them must appear in the relationship of cause and effect; but when a tiling which has caused, an injury is shown to he under the management of the party (the defendant) charged with negligence, and the accident is such as in the ordinary course of things does not happen if those Who have the management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party (the defendant) charged, that it arose from the want of proper care. (Post, pp. 643-645.) Cases cited and approved. Railroad v. Lindamood, 11Í Tenn., 457; Traction Co. v. Giese, 229 Ill., 263; Snyder v. Electric Co., • 43 W. Va., 661; Benedict v. Potts, 88 Md., 52. 4. SAME. Same. Doctrine expressed by maxim “res ipsa loquitur" is defined and illustrated. Such indirect method of arriving at the negligence of the defendant is generally expressed by the maxim “res ipsa loquitur" (the thing itself speaks), and is merely a short- way of saying that the mere occurrences in themselves import negligence, or that the circumstances attendant upon the accident are themselves of such character as to justify a jury in inferring negligence as the cause of the injury, but it in no wise modifies the general doctrine that negligence will not be presumed. (Po'st, pp.. 643, 644.) Case cited and approved: Snyder v. Electric Co., 43 W. Va., 668- 5. SAME. Same. Same. The rule or maxim “res ipsa loquitur" applies, when and when not. Where the act which caused the injury was shown by. direct evidence, and all the circumstances of the accident were proved, and the only reasonable explanation of the accident gave rise to an inference of negligence, the rule of “res ipsa loquitur” applies; but such rule or maxim does not apply where both the act which caused the injury and the negligence of the defendant in relation to the act must be inferred from the accident itself. Post, pp. 645-647.) Case cited and approved: Sauer v. Brewing Co., 3 Cal. App., 127. 6. SAME. Street railroad in permitting its cars to be heavily loaded with passengers is not guilty of actionable negligence toward persons on the street.' The fact that a street railroad company permitted so large a number of passengers to occupy a car as to cause it to be heavily loaded while on a sharp ascent in the street is not actionable negligence toward persons on the street. (Post, p. 647.) 7. STREET RAILROADS. Must receive and transport passengers tendering the fare and finding places of safety. A tender to a street railroad company of the requisite fare, and the ability of the passenger to find a place of safety on the car would impose an obligation on the company to receive and transport the passenger. (Post, p. 647.) 8. SAME. Actionable negligence by the company is not shown where a person on the street is injured by hard ■ substance thrown by heavily loaded cars ascending a sharp ascent. A person, while passing near a heavily loaded street car stalled on a sharp ascent, was struck in the eye with force by a hard, rough, triangular shaped substance coming from under the car while its wheels were revolving rapidly in the same place on the track. An expert testified that the probable effect of such revolution of the wheels would be to throw out slivers of steel from the rail or wheel, or both, with considerable force. The track was examined at the place of the accident soon after it occurred, and particles of sand twere found on it; but it did not appear that the car men had used any sand. It was customary to place sand on the track, when needed to prevent the slipping of the wheels. There.was no evidence that either the machinery or the wheels of the car or the rails were defective. Upon these facts, it was held, as a matter of law, that actionable negligence of the street railway company was not shown. Cases cited' and approved: Hayes v. Railroad, 111 U. S., 228; Wood v. Railroad, 5 Pennewill (Del.), 373; Foulke v. Railroad, 6 Pennewill (Del.), 368; Railroad v. Anderson, 20 Am. St. Rep., 493; Railroad v. Locke, 112 Ind., 404; and authorities cited in Railroad v. Lindamood, 111 Tenn., 457.
123 Tenn. 649Mitchell v. State (1910)
CRIMINAL LAW. One convicted of assault with Intent to commit murder In the second degree may be imprisoned in county jail for one year, to which must be added a fine. A person convicted of an assault with intent to commit murder in the second degree may he punished by imprisonment in the county jail for not more than one year and by fine not exceeding five hundred dollars under the statute contained in section 6471 of Shannon’s Code, so providing; and such case is not governed by section 7206 of said Code, providing that no one convicted of a felony shall be imprisoned in the penitentiary for less than twelve months, but the jury may, whenever of the opinion that the offense merits less, punish by confinement in the county jail for a less period; for, if the two statutes applied to the same cases, there would be a conflict between them in this that in the first case the punishment must be by imprisonment in the county jail not exceeding one year and fine not exceeding five hundred dollars; and in the second case, imprisonment in the county jail for any period less than twelve months; the imprisonment in the first case is for one year or less, to which must be added the fine, while in the second case, the imprisonment must be for less'than twelve months, without fine. Code cited and construed; Secs. 6471, 7206 (S.); secs. 5379, 6072 (M. & V.); secs. 4630, 5232a (T. & S. and 1858). Cases cited and approved: Bolton v. State, 5 Cold., 650, 657; Davis v. State, 6 Bax., 429; Morton v. State, 91 Tenn., 437, 439, 440.
123 Tenn. 654State v. Ashman (1910)
1. CONSTITUTIONAL LAW. Statute imposing privilege tax upon nonresidents for taking pearl mussels or other shell fish, for profit, is not unconstitutional. The statute (Acts 1909, ch. 560), prohibiting nonresidents from • taking pearl mussels or other shell fish, for profit, without license and payment of a prescribed privilege tax, was enacted under the power conferred by the State constitution (art. 11, sec. 13), authorizing the enactment of laws for the protection and preservation of game and fish within the State,- and does not violate that provision of the State constitution (art 1, sec. 8), prohibiting the disseizin of property and privileges, but by the judgment of his peers or the law of-the land, etc., nor does it violate the federal constitution (art. 4, sec. 2, and 14th am.), prohibiting State laws abridging the privileges or immunities of the citizens of the several States. (Post, pp. 655, 656.) Acts cited and construed: Acts 1909, ch. 560. Constitution cited and construed: State const., art. 1, sec. 8, art. 11, sec. 13; TJ. S. const., art. 4, sec. 2; 14th am. 2 FISH AND GAME. Title is in the State, when not reduced to possession nor under restraint; restriction and prohibition of right to take them. Under the common law, the title to game and fish, not reduced to possession nor under restraint, is in the sovereign power (in Great Britain, in the King; in the United States, in the several States, in trust for their inhabitants); and no one has any absolute property right -therein, and the right to take them may he restricted or prohibited; and when granted or exercised, it is a privilege. It is a property right in the State, and not one of citizenship. (7?ost, pp. 657, 658.) Cases cited and approved: Maney v. State, 6 Lea, 218; Peters v. State, 96 Tenn., 688; Magner v. People, 97 Ill., 333. 3. CONSTITUTIONAL LAW. Rights, privileges, and immunities secured to the citizens of the several States do not include property rights of the several States held in trust for their inhabitants. The rights, privileges, and. immunities, which are secured by the federal constitution (art. 4, sec. 2,' and 14th am.) to the citizens of the several States, do not include any rights in the property of the several States, held in trust for their own inhabitants; and State laws which prohibit them, in whole or in part, from participating in the benefits of that property do not. deprive them of any constitutional rights. (.Post, pp. 656-662.) Cases cited and approved: Corfield v. Coryell, 4 Wash. (C. C.), 371, 380, Fed. Cas., No. 3,230; Scott v. Sandford, 19 How., 580; MeCready v. Virginia, 94 TJ. S., 391; Wharton v. Wise, 153 U. S., 155-177; State v Medbury, 3 R. I., 138; Chambers v. Church, 14 R. I., 398; Commonwealth v. Hilton, 174 Mass., 32; Haney v. Compton, 36 N. J. Law, 507; People v. Lowndes, 130 N. Y., 455.
123 Tenn. 663Darnell v. State (1910)
1. CONSTITUTIONAL LAW. General provision i“n body of stat- . ute creating board of jury commissioners construed as limited to the scope of the title, when. A statute (Acts 1905, ch. 233) creating a board of jury commissioners for counties of a certain population according to the federal census is not rendered unconstitutional by a provision (in section 19 thereof) that the act shall apply to all grand and petit juries in the circuit and criminal courts of the State; for the statute and this provision thereof must he construed as limited to counties of the prescribed population, so as to bring the same within the scope of the caption or title of the act. (Post, pp. 665, 666.) Acts cited and construed: Acts 1905, ch. 233. 2. JURORS-AND JURIES, Incompetency on account of prior service; distinction between emergency and regular jurors under local jury law. While, under a proper construction of the statute (Acts 1905, ch. 233), creating a hoard of jury commissioners and relating to juries in counties of a certain population under the federal cen sus, an emergency juror, drawn under sections 7 and 8 thereof, is not incompetent because of service on a regular jury within the two years next preceding, yet a regular juror, though drawn under the special provisions, of section 13, and though section 4 allows him to he put on the jury list, is, under section 5, in view of sections 6, 11, and 12, incompetent, if he has served on a regular jury within the two years next preceding. (Post, pp. 666-674.) Acts cited and construed: Acts 1905, ch. 233, secs. 4, 5, 6, 7, 8, 11, 12, 13. 3. .SAME. Statute amending one section of the Code so as to extend period of disqualification operates to amend other sections in that respect. A statute (Acts 1883, ch. 138), amending section 3981 of the Code of 1858, as to the time of the appointment of jurors, and providing that no person shall be summoned or serve on the venire who has served on a venire for a period of two years preceding, operates to amend also sections 3988 and 4010 of said Code, so as to extend the period of disqualification from one year to two years, as shown in the corresponding sections in Shannon’s Code of 1896, for all these sections must be construed in pari materia. (Post, pp. 674-676.) Code cited and construed: Secs. 5793, 5799, 5820, 5821 (S.); secs. 4756, 4763, 4784, 4795 (M. & V.); secs. 3981, 3988,-4009, 4010 (T. & S. and 1858). Acts cited and construed: Acts 1883, ch. 198. 4. SAME. Juror selected by trial judge is not an emergency juror, and is incompetent for service within two years; reversible error to compel defendant to take him, when. A juror in a panel selected by the trial judge under section 13 of said Acts 1905, ch. 233, is a regular juror, and is not an emergency juror under sections 7 and 8 of said act, and where such juror has served on a regular jury within the two years next preceding, he is incompetent, and it is reversible error to compel the defendant in a criminal case, over his specific objection upon that ground, to take him as a juror after he had exhausted his peremptory challenges. (Post, pp. 676, 677.) Acts cited and construed: Acts 1905, ch. 233, secs. 7, 8, and 13.
123 Tenn. 678Louisville & Nashville Railroad v. Smith (1910)
1. COMMON CARRIERS. Evidence of improper tying of horses by carrier will support a verdict for damages on account of negligence. In an action against a common carrier for injuries to horses ■while in transit, evidence that the horses, after being unloaded and fed, were improperly tied by the carrier’s employees upon reloading them, whereby the horses were injured, is sufficient evidence of the carrier’s negligence to support a verdict for damages. (Post, pp. 686, 687.) 2. SAME;. Limited liability contract for shipment of live stock is not binding without option to take common law liability contract. Before the shipper can be bound by the terms of a limited liability contract, it must appear that it • was made known to him in some form that the carrier was ready and willing to transport the goods under the common law liability,' and that a rate was fixed therefor; that is to say, that a fair option was offered to him to ship the goods under the common law liability of the carrier at a rate fixed therefor, or under the limited liability contract. (Post, pp. 687, 688.) Cases cited and approved: Railroad v. Gilbert, 88 Tenn., 430; Railroad v. Sowell, 90 Tenn., 17, 24; Deming v. Cotton Press Co., 90 Tenn., 327; Railroad v. Stone, 112 Tenn., 348, 363 (and citations on page 363). 3. SAME. Evidence held to be insufficient to show a fair option to shipper to take common law liability contract instead of the limited liability contract. In an action against a common carrier for injuries to horses while in transit, the evidence is stated and held to be insufficient to show that the shipper was notified that the carrier would transport the stock under the common law liability at a rate fixed therefor, or that the shipper was given a fair option to ship under the common law liability, so as to make valid a limited liability contract. (Post, pp. 690-699.) 4. SAME. Shipper, in the absence of fraud, is bound by unread limited liability contract for shipment of live stock. A shipper, in the absence of fraud or misrepresentation on the part of the common carrier, is bound by a limited liability contract for the transportation of live stock, and is chargeable with notice of its contents, when executed by him, though he did not read it, if he was not fraudulently prevented from reading it. (Post, pp. 682, 683, 699.) 5. SAME. Not bound to offer, formally or specifically, a common law liability contract, to make valid a limited liability contract for shipment of live stock. It is not essential to the validity. of a limited liability contract for the shipment of live stock that the common carrier shall formally or specifically tender to the shipper a contract or bill of lading in keeping with the common law liability. (Post, pp. 6-88, 700.) Cases cited and approved: Railroad v. Sowell, 90 Tenn., 17, 24. 6. SAME. Limited liability contract for shipment of live stock does not give notice to shipper of option to ship under common law liability contract, when. A limited liability contract for the shipment of live stock, though reciting that the shipper might ship at the rates established by it therefor, or, in consideration of certain risks, duties, and liabilities assumed by the shipper, at greatly reduced rates, is not sufficient to give notice to the shipper that he has an opportunity to ship at rates imposing a common law liability upon the carrier, where there is nothing in the contract showing what was the full established rate of the carrier for such liability, and where the evidence did not show that the shipper knew what was the full rate “established” by the carrier. (Post, pp. 691, 694, 696-700.) 7. REQUESTED INSTRUCTIONS. Not correct In themselves are properly refused. Requested written instructions that are not correct in themselves are properly reiused by the trial judge. (Post, pp. 699.) 8. INTERSTATE COMMERCE. Statute does not prevent State from refusing to enforce special - limited liability shipping contract. i The right of a State to refuse to enforce a special live stock shipping contract limiting the liability of a common carrier, made in another State, is not affected by the interstate commerce law. (Post, p. 701.) Acts of congress cited and construed: Act of Feb. 4, 1887, ch„ 104, 24 Stat., 379. Case cited and approved: Railroad v. Hughes, 191 TJ. S., 477. ■9. REQUESTED INSTRUCTIONS. Not considered where the whole charge does not appear In the record. Where the whole charge does not appear in the record, the supreme court will not consider assignments of error based upon special requests refused or given. (Post, pp. 701, 702.) 10. SAME. Same. Considered-when so diverse from that portion of the general charge appearing in the record that it is Impossible to conceive, that the special requests were Included in It. Where the special requests are so diverse from that portion of the general charge appearing in the record that it was not possible to conceive that the trial judge had given such special instructions in his general charge, the supreme court may depart from the rule stated in the preceding headnote, and consider the assignments of error based upon special requests refused or given. (Post, pp. 682, 683,- 702.) 11. COMMON CARRIERS. Limitation of liability to one-third or one-half of the value of live stock shipped Is unreasonable and void, when. A live stock shipping contract, limiting the liability of the carrier to a specific amount as the agreed value of the animals, by a printed provision, in the case of stallions, is unreasonable and of no force, where the stallions actually shipped and injured by the carrier’s negligence are worth at their market value two, three, or four times as much as the amount limited; for such pretended agreed valuation is a mere cloak to avoid or limit the carrier’s liability for its negligence. (Post, pp. 704-712.) Cases cited and approved: Railroad v. Stone, 112 Tenn., 348; Berry v. Railroad (S. D.); 124 N. W., 859, 863, 864; Railroad v. Jones, 132 Ala., 437, 441, 442; Express Co. v. Owens, 146 Ala., 412; Express Co. v. Gibbs, 155 Ala., 303; Railroad v. Keener, 93 Ga., 808; Railroad v. Murphy, 113 Ga., 514; Railroad v. Hall, 124 Ga., 322; Express Co. v. Bachman, 28 Ohio St., 144. 12. SAME. Same. Against public policy to enforce such contracts, though made in another State; but comity was not considered. ■ It is against the public policy of this State to enforce such contracts limiting the liability of the carrier where the valuations contained therein range from one-half to one-fourth of the market1 value of the stock shipped, it seems even though such contract was made in another State; but the question of comity was not considered,. because it seems such contracts are not enforceable in Kentucky where the contract involved in this case was made. (Post, pp. 704-712 and especially 712.) Cases cited and approved: Railroad v. Graves, 52 S. W., 961; ' Express Co. v. Walker, 119 Ky., 121.