« AnteriorContinuar »
satisfactorily compensated by the larger a title stating the object of the statute to be wages he can earn in the service than in to authorize the acquisition, improvement,
and maintenance of parks. other employments. In this state we have already narrowed the field covered by the 5. The creation of a park commission law of fellow servants by withdrawing from
and a board of park commissioners is within
the purview of a title authorizing the acquisiit cases wherein one servant of the master
tion, maintenance, and improvement of parks. is set over other servants, with power to 6. An amendatory act, whose caption command them in their work, and by the merely recites the title of the origiintroduction of the departmental doctrine nal act, without enlarging its scope, is conas construed and applied in our previous
stitutional and valid, providing its purview cases, and have added cases arising under
is germane to the title of the original act. these to the master's generally recognized duty of furnishing safe tools and appli
(July 6, 1904.) ances, a safe place to work, and the selection of reasonably competent servants. We
PPEAL by petitioners from a judgment deem it inexpedient to make any further ex
of the Circuit Court for Shelby County tension than may follow from a natural and dismissing a petition for the condemnation reasonable development of the principles al- of land for the construction of a park ready adjudged. We do not think the case
boulevard. Reversed. now put before us lies within the path of
The facts are stated in the opinion. that development.
Mr. L. B. McFarland, with Mr. J. W. We are of opinion, therefore, that the cir- Canada, for appellants: cuit judge committed error in not sustain
The legislature may empower a city to ing the demurrer to the third count of the spend money on improvements on roads declaration, and the first assignment is sus- outside of the city limits, and levy a tax tained.
therefor. Other assignments of error are disposed
Hagood v. lutton, 33 Mo. 244. of in a memorandum opinion filed with the
And to enforce police ordinances. record, and need not be further referred to
Van Hook v. Selma, 70 Ala. 361, 45 Am. here.
Rep. 85; Emerich v. Indianapolis, 118 Ind. Reverse and remand.
279, 20 N. E. 795.
And to condemn property beyond its limits.
JIoughton v. Huron Copper Min. Co. 57 City of MEMPHIS et al., Appts., Mich. 547, 24 N. W. 820; Warner v. Gunni
son, 2 Colo. App. 430, 31 Pac. 238; Lester v. Margaret HASTINGS.
Jackson, 69 Miss. 887, 11 So. 114; Cham
bers v. St. Louis, 29 Mo. 513; Newman v. (113 Tenn. 142.)
Ashe, 9 Baxt. 380; Hagood v. Hutton, 33 legislature 1. The
Mo. 244; Thompson v. Moran, 44 Mich. 605,
authorize municipal corporation to condemn
7 N. W. 180; Warner v. Gunnison, 2 Colo. for park purposes and boulevard land near App. 430, 31 Pac. 238. to, but outside of, its corporate limits.
Where there is a general law in existcondemnation of land
ence, giving to municipalities or other boulevard connecting public parks bodies the right of condemnation, and prois not unlawful on the ground that it is for mere convenience or pleasure, not for neces
viding for compensation to the landowners sity.
whose property is taken, special acts passed 3. An amendment a city charter thereafter, extending or enlarging the right authorizing
condemnation of condemnation, are not fatal if they fail land outside the city limits for park to provide for compensation. purposes is not invalid for not providing
Jennings v. LeRoy, 63 Cal. 397; Warner compensation to the owner of the land taken, where it provides that the proceedings for the
v. Hennepin County, 9 Minn. 139, Gil. 130; exercise of the power of condemnation shall Cherry v. Keyport, 52 N. J. L. 544, 20 Atl. be the same as that now provided by law for 970; Clarke v. Blackmar, 47 N. Y. 150; the taking of private property for public use, Re New York Elev. R. Co. 70 N. Y. 327, and the charter of the city incorporates with Affirming order, 7 Hun, 239; Swikehard v. in itself the general condemnation statutes of the state.
Michels, 81 Hun, 325, 29 N. Y. Supp. 777, 4. A provision in a statute authoriz
30 N. Y. Supp. 1135, 8 Misc. 568, 29 N. Y.
of land for Supp. 777; Re Sharett's Road, 8 Pa. 89; boulevards to connect parks is covered by Smedley v. Erwin, 51 Pa. 415; Wister v.
Philadelphia, 6 Legal Gaz. 51, 31 Phila. NOTE.- For a collection of authorities upon the right to take property for the comfort and Leg. Int. 53; Tuttle v. Knor County, 89 pleasure of the public, see Knowlton v. Will
Tenn. 157, 14 S. W. 486. iams, 47 L. R. A. 314.
Park ways are incidental and ancillary to
parks, and an essential part of the im- , the powers conferred by said act, the city provement of parks and a park system. was authorized to establish by ordinance
Re New York, 34 Hun, 444, Affirmed in a park commission, composed of three mem99 N. Y. 569, 2 N. E. 612; People ex rel. bers, and that Robert Galloway, L. B. McSeaver v. Green, 52 How. Pr. 440; Re | Farland, and J. R. Godwin had been legalProspect Park & C. I. R. Co. 67 V. Y. 371; I ly elected, and now constitute said park Luehrman v. Taxing District, 2 Lea, 430; commission. It is further alleged that on Brandon v. State, 16 Ind. 197; Ex parte the 5th of November, 1903, an ordinance Grissin, 88 Tenn. 548, 13 S. W. 75; Cannon was passed authorizing and directing the V. Mathes, 8 Heisk. 523; Sutherland, Stat. park commissioners to obtain, establish, and Constr. $ 93; State v. Yardley, 95 Tenn. 555, construct a system of park ways in and 34 L. R. A. 656, 32 S. W. 481; Illinois C. I around the city of Memphis; that, under R. Co. v. Crider, 91 Tenn. 494, 19 S. W. and by virtue of this ordinance, the park 618.
commission did, on the 9th day of January, Land taken by a city for purposes of | 1904, establish said park way so as to bep:irks, park ways, or for places of recreation gin at Overton park, and run thence south and amusement for the public, and advan- along and with Trezevant avenue to tageous to the public for recreation and point 700 feet south of the right of way of health, is taken for public use; and the the Southern Railway Company, thence west power of eminent domain extends thereto. to Cooper avenue, thence south along Coop
United States v. Cooper, 9 Mackey, 104; er avenue to Lamar Boulevard, and thence Shoemaker v United States, 147 U. S. 282, in a westerly and southwesterly direction 37 L. ed. 170, 13 Sup. Ct. Rep. 361; United to Kerr avenue, and along and with Kerr States v. Gettysburg Electric R. Co. 160 avenue to Riverside Park and the MissisU. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. sippi river; said park way to be 200 feet 427; Rouan v. Portland, 8 B. Mon. 232 ; in width as far south as Union avenue, and County Court v. Griswold, 58 Mo. 175; | for the balance of the distance to average Re Central Park, 63 Barb. 282; 1 Lewis, 150 feet in width. It is then alleged that, Em. Dom. $ 175, p. 443; West Chicago Park in order to construct this park way or v. Western U. Teleg. Co. 103 Ill. 33; Higginboulevard, a certain portion of the propson v. Nahant, l1 Allen, 530; Re Bush- erty of defendant is required, and that the wick Ave. 48 Barb. 9; Re Niagara Falls e object of this petition is to acquire the Whirlpool R. Co. 108 N. Y. 375, 15 N. E. same by condemnation proceedings. 429; Brooklyn Park v. Armstrong, 45 N. The prayer of the petition is that the city Y. 234, 6 Am. Rep. 70; Re New York, 99 of Memphis be decreed an ea sement or N. Y. 569, 2 N. E. 612; 10 Am. & Eng. right of way to the strip of land described, Enc. Law, 2d ed. pp. 1084,1085; People ex and that the court issue its writ of inrel. Wilson v. Salomon, 51 Ill. 37; Foster quiry of damages to the sheriff, commandv. Park Comrs. 133 Mass. 321; State Park v. ing him to summon a jury, to be named by Henry, 38 Minn. 266, 36 N. W. 874; Re the court, to inquire into and assess the Central Park, 50 N. Y. 493; Re Washing damages of the defendant by reason of the ton Park, 52 N. Y. 137; Root's Case, 77 taking of the strip of land described. Pa. 276.
The defendant resisted the condemnation Messrs. Randolph & Randolph for ap- of said land, and in her answer relied upon pellee.
the following grounds, riz: (1) Because
the city of Memphis is attempting to conMcAlister, J., delivered the opinion of demn property for public uses situateu outthe court:
side of its corporate limits, and that any This record presents a petition exhibited act authorizing the exercise of the power in the circuit court of Shelby county, ask to condemn land lying wholly without its ing the condemnation of a certain strip of corporate limits is unconstitutional and land, 900 feet long and 50 feet wide, belong. void. (2) That the said chapter 142, p. ing to the defendant, for the purpose of 250, of the Acts of 1899, is in violation of extending a boulevard along the west side article 1, $ 21, of the Constitution of Tenof Trezevant avenue. It is alleged therein nessee, and is also in violation of the 14th that, under and by virtue of chapter 142, p. Amendment of the Constitution of the 250, of the Acts of 1899, the city of Mem- United States, because it does not proride phis is empowered to purchase by private for just compensation to be paid to the negotiation, or acquire by condemnation, a owner of the property sought to be conpark way for the purpose of connecting the demned, and that the mode and manner of city with any parks that might be estab- ascertaining such compensation, and lished, or for the purpose of connecting the forcing the same, is not fixed and estabparks with each other. It is further al. | lished in said act. (3) That it violates leged that, for the purpose of carrying out article 2, § 17, of the Constitution of Ten
nessee, because the body of the act provides | 000, bearing a rate of interest not exceedfor subject-matters outside of the title, and ing 5 per cent maturing at such time, callnot in any sense germane to the subject able in such manner as the legislative coun. suggested by it.
cil may determine, and payable in lawful The cause was heard at the March term, money of the United States of America,” 1904, by the Honorable J. P. Young, who etc. was of opinion that the act of 1899 was Section 4: “That such taxing district unconstitutional, because the subjects of or city is authorized and empowered to levy the act are not embraced in the title; and
a special park tax only so long as said further, that said act makes no provision bonds shall remain outstanding,” etc. for compensating the owners of property Section 5: That such taxing district or so condemned for a park boulevard; and city shall have the power to purchase by further, that such a boulevard connecting private negotiation, or acquire by condemnathe parks is a public convenience, and not tion, a park or park ways, either running a public necessity. The court thereupon from said taxing district or city to any dismissed the petition. The city appealed, such park, or running between and connectand has assigned errors.
ing such parks; and such taxing district Chapter 142, pp. 250–252, Acts 1899, 8 or city may purchase or condemn such park 1, provides as follows: "The parks, or lands ways either within or without the limits to be used for park purposes, may be pur- of such taxing district or city, but in no chased either by private negotiation or by case more than 10 miles beyond the nearcondemnation, as hereinbefore provided, as est point of the limits of such taxing dismay be determined by the legislative countrict or city as the same may be at the uate cil. If the parks, or land for park pur- of such purchase or condemnation; and the poses, be purchased by private negotiation, proceeds of the bonds aforesaid may be the negotiation shall be conducted by such used for improving or maintaining such member or members of the legislative coun- park ways." cil as shall be designated by said council; Section 6 provides for the creation of a but no purchase shall be effected until the park commission by the legislative council same has the approval of the majority of of such taxing district, to be composed of the legislative council. And said parks, or three members, who shall be elected by said land for park purposes, may be purchased legislative council. either within or without the limits of such Section 7 provides that the legislative taxing districts or cities, but not more than council of such taxing district or city shall 10 miles from the nearest point on the have full and ample power to establish, by limits of such taxing districts or cities, as ordinance, rules and regulations to govern such limits may be at the time of such said park commission, and to govern the purchase."
employment and discharge of sucn Section 2: “Any such taxing district or ployees, and to fix the official bonds and the city may condemn parks or land for park compensation of such park commissioners purposes under the power of eminent do- and employees. main, and such taxing districts and cities The first objection to this act is that it are hereby expressly given the power to undertakes to permit the municipal authorcondemn, for park purposes, the yards, ities to condemn land for parks and for the switches, tracks, the depot and property of building of park ways situated beyond the any character, of any railroad company, and municipal limits; and it is insisted that also the property of any manufacturing es- the legislature has no power to delegate tablishment, and also the property of any such authority. other person or corporation either within An examination of the act of 1899 will or without the limits of said taxing dis show that it is an amendment to chapter trict or city, but not over 10 miles beyond 11, p. 15, of the Acts of 1879, constituting the nearest point in said limits as such the city of Memphis a taxing district, and limits may be at the time of such con- providing a local government for the same. demnation; and the proceedings for the Section 20 of chapter 11, p. 28, of the exercise of this power of condemnation shall | Acts of 1879, provides: “That private propbe the same as that now provided by law erty within the taxing district may be tak. for the taking of private property for pub- en for public use in the manner now prolic uses.”
vided by law for the application of priSection 3: “That, in order to raise the vate property to public use.” means necessary to purchase or condemn It is insisted that, under the original parks, or land for park purposes, such tax charter just recited, conferring upon the ing districts or cities are hereby author. city of Memphis the right of eminent doized and empowered to issue their coupon main, the exercise of that power was ex• bonds to any amount not exceeding $250, pressly limited to property lying within
the corporate limits. But it is manifest withstanding the fact that it was situated that the act of 1899 has enlarged the ex- beyond the corporate limits of Detroit. ercise of the right of eminent domain by Warner v. Gunnison, 2 Colo. App. 430, 31 the corporate authorities of the city of Pac. 238; Dill. Mun. Corp. 3d ed. $$ 146, Memphis so as to permit property situated 597 et seq.; Houghton v. Huron Copper beyond the corporate limits to be appro- Min. Co. 57 Mich. 547, 24 N. W. 820; Lespriated and condemned for the purpose of ter v. Jackson, 69 Miss. 887, 11 So. 114; establishing parks, and connecting them by Chambers v. St. Louis, 29 Mo. 543; Hagood boulevards with the city and with each v. Hutton, 33 Mo. 244. other.
It will be observed that, under the act of It is insisted, moreover, on behalf of ap- 1899, the city is authorized to exercise the pellee, that there is a distinction between right of eminent domain in condemnation a grant of authority from the legislature of property either for parks, or park purto a municipal corporation to exercise the poses, or park ways, within a limit of 10 right of eminent domain in the condemna miles from the nearest point of said taxtion of property situated beyond the cor- ing district or city. It was argued at the porate limits for the establishment of a bar that it would be a great stretch of park, and the grant of such authority for power on the part of the legislature to perthe building of a boulevard connecting such mit the municipal corporation to acquire parks. The position is that, while a park land for public purposes in remote portions may be a matter of public necessity to the of the state; but, as already seen, the inhabitants of a crowded city, as a means power conferred by the act of 1899 upon the of furnishing them healthful recreation, municipality of Memphis must be yet no such necessity exists for the concised on land situated adjacent or contig. demnation of land for the building of a uous to the corporate limits, and within a boulevard merely to connect such parks. distance of 10 miles from its nearest point.
The record discloses that the boulevard in Moreover, it appears from the record that question is to be about 3 miles long, entire- the boulevard sought to be condemned is ly without the city limits, and at its nar at all points within 1 mile of the corporate rowest point 150 feet wide, and at its limits of the city of Memphis. greatest 200 feet. It is shown that the The next objection is that the condemnaroute to be followed by the park way is over tion of the land of the defendant is not a country roads that are now in existence, public necessity, but merely a public conand the land of defendant is sought for the venience; and, for that reason, the act of purpose of widening the roads as they now the legislature, so far as it attempts to exist. It is said the entire length of the authorize such appropriation, is unconstituproposed park way now forms one contin- tional and void. Mr. Lewis, in his work uous public road extending between the two on Eminent Domain (vol. 1, § 175), says: parks; and, while it is admitted that a “Pleasure and recreation are not only eswide road connecting them is a matter of sential to health, but tend to the improvegreat public convenience, it is not a matter ment of character. No better instance of of public necessity, and hence is not sub- , a public use can be given than that of a ject to be taken in the exercise of the city's public square or park in the midst of, or right of eminent domain.
convenient to, a dense population. Private In Newman v. Ashe, 9 Baxt. 380, it was property may be taken for the purpose of held that, while the charter of the city of securing such means of recreation and Knoxville did not in express terms confer health. A park is a public use, though not the power to purchase and hold real es-located in a city or town, but only in the tate outside of the corporate limits for vicinity of it. Land may be taken on each the purpose of constructing waterworks, it side of a highway to be kept open for courtdid so by necessary implication. The power yards and ornament. Highways may be to construct waterworks—a legitimate cor laid out for the purpose of affording acporate purpose—is expressly given, and the cess to a position which commands a fine authority is given to the mayor and alder view, or for accommodating pleasure drivmen to protect from injury, by adequate ing. The taking of a large tract in the penalties, the pipes, hydrants, or fixtures, Adirondacks for a state park was held buildings, or improvements, belonging to, to be for a public use. So, limiting the or in any way pertaining to, said water- height of buildings around a public park works, whether within or without the lim or square.” its of said corporation.
It will be observed, the author states that In Thompson v. Moran, 44 Mich. 605, 7 a park is a public use, though not located in N. W. 180, an act of the ure giving a city or town, but only in the vicinity of it; the city the right to purchase, improve, and and, further, that land may be taken for control Belle Isle park was sustained, not-I driveways, or for accommodating pleasure
driving. In the case of West Chicago Park | under the power of eminent domain, not v. Western U. Teleg. Co. 103 Ill. 33, it was only for pablic parks in cities, but it may held that land might be condemned for be condemned in a county for the inhabitbuilding a boulevard running from the ants of the county.” 10 Am. & Eng. Enc. south end of Douglas park to the Illinois & Law, 2d ed. pp. 1084, 1085; Re Central Park, Michigan Canal.
63 Barb. 282; People ex rel. Wilson v. Sal"A public park is a public use." United omon, 51 Ill. 37; Foster v. Park Comrs. 133 States v. Cooper, 9 Mackey, 104.
Mass. 321; State Park v. Henry, 38 Minn. “Land taken in a city for public parks 266, 36 N. W. 874; Brooklyn Park v. Armand squares advantageous to the public for strong, 45 N. Y. 234, 6 Am. Rep. 70; Re recreation, health, or business is taken for Central Park, 50 N. Y. 193; Re Washington a public use, and the power of eminent do- | Park, 52 N. Y. 137; Root's Cose, 77 Pa. 276; main extends thereto.” Shoemaker v. United County Court v. Griswold, 58 Mo. 175. States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. It is next objected that the act of 1899 Ct. Rep. 361.
makes no provision for compensatioa to the “The purpose of preserving and marking owner of land conden ned for parks or park on the site of the battle of Gettysburg the purposes. In Watauga Water Co. v. Scott, positions occupied by the different military 1!i Tenn. 321, 76 S. W. 839. it was said by organizations at that battle is a public use this court, viz.: “It is a fundamental prin. or purpose for which Congress may author- ciple of the law of eminert domain and the ize the condemnation of the necessary land." taking of property for public use that it can United States v. Gettysburg Electric R. Co. only be done by making just compensation 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. to the person whose property is taken for 427.
its reasonable value, and any legislation "The right of the public at large to ac- which confers the right of eminent domain quire easements over the lands of individu- can only be valid upon condition that such als is not confined to public highways, but compensation is provided for, and the mode extends to many other easements and uses," and manner of ascertaining and enforcing such as public parks and grounds. Rowan the same is fixed and established.” 1. Portland, 8 B. Mon. 232.
Article 1, $ 21, of the Constitution, proThe legislature, in 1874, authorized the vides, viz.: Private property shall not be appropriation of land for a public park for taken or applied to public use without just the benefit of the inhabitants of St. Louis compensation being made therefor. county located outside the city. Held to be It is insisted that this indispensable rea public use, although chiefly beneficial to quirement to the exercise of eminent dothe citizens. County Court v. Griswold, 58 main for any purpose has not been observed Mo. 175.
by this act. It is said, however, that the Land taken in a city for public parks act of 1899 is only an amendment to chapand squares by authority of law, whether ter 11, p. 28, Acts 1879, the original charter advantageous to the public for recreation, of Memphis, which does provide, viz.: "That health, or business, is taken for a public the private property within the taxing disuse; and it is no valid ground of objection trict may be taken for public use in the to the confirmation of a report of commis- manner now provided by law for the apsioners for opening a new park that the plication of private property to public use." lands embraced in such park are not all con- It will be remarked that, while the right tiguous, and that there are intervening to take property for public use under the blocks and spaces not taken, where such in- act of 1879 is confined to property situated tervening spaces are not so large as to inter- within the taxing district, the amendatory fere with the integrity or continuity of the act of 1899 extends the right to be exercised plan, or the equalizing of the assessments. over property located beyond the limits of
They contribute to the health and enjoy the taxing district, and within 10 miles of ment of the people, and are laid out with its nearest point. It is in this respect only drives and ways for public use.
that the original act is amended. It will ceedings in the case of Higginson v. Nahant, be noticed that the original act of 1879 does 11 Allen, 530, and Mt. Washington Road not in terms provide for compensation to Co.'s Petition, 35 N. H. 134. were justified the landowner, yet says it may te taken on the ground that they were public high- for public use in the manner now provided ways in the ordinary sense, although pri- by law, etc. marily intended as pleasure drives. Re Now it is insisted that $ 20, chap. 11, p. New York, 99 N. Y. 569, 2 N. E. 642.. 28, of the Acts of 1879, just quoted, incor.
“Land taken in a city for a public park porates into the taxing-district charter the whether advantageous to the public for rec- general law upon the subject of eminent doreation, health, or business, is taken for a main, and, among other provisions, the oblipublic use. And the land may be condemned' gation of just compensation to the owner.