Gourley v. Turnpike Co.

56 S.W. 855, 104 Tenn. 305

• Court: Tennessee Supreme Court
• Decided: March 14, 1900
• Status: Published

Opinions

W. L. Griosby, J.

This 'suit was brought by the Nashville & Goodlettsville Turnpike Company, a corporation organized and incorporated under tire laws of this State, against Han Gourley for a forfeiture of $5 as prescribed by its charter for passing through one of its gates, known as gate No. 2, and refusing to pay toll.

The case was tried by the Circuit Judge on an appeal to that Court from a Justice of the Peace, without the intervention of a jury, resulting in a judgment against Gourley and in favor of the turnpike company. The plaintiff below appealed, and assigns as error the refusal of the trial Court to allow him to introduce proof to establish his defense. (1) That the turnpike company was operating its pike in violation of its charter and against the statute laAvs of the State, in this, that it • did not have the road properly mile-marked as required by the statute; that the road was in bad condition, and not such a road as would justify the collection of toll from the traveling public. (2) That the company was maintaining unlawful gates; that the charter under which the company derived its power to demand and receive toll requires the gates to be not less than live miles apart, consequently, in effect, the turnpike company was attempting to collect a forfeiture for failing to pay toll when it had no authority to collect toll.

It is immaterial .at which gate the defendant below refused to pay .toll. If he was liable to pay the toll demanded, and refused and went through, the gate regardless of the demand to pay, then a suit for a ■ forfeiture of five dollars would be maintainable; on the other hand, to legally maintain a suit for a forfeiture, it • must first appear that the demand to pay toll was a proper demand, and that the turnpike company had the legal right to collect it.

Tt will not be seriously contended that if the turnpike company had no legal right to demand and receive toll from the traveling public, who had occasion to pass over its road, that it could successfully prosecute a suit for a forfeiture on refusal to pay toll.

The defendant below offered to prove that the gates designated as gates Nos. 7 and 2 were within 3ri miles of each other, when the charter of the turnpike company requires the gates to be five miles apart.

It is insisted, however, that the statute laws of the State permitted the company to move the gate one mile from a city or town, and result-ingly nearer together. Concede this to be true, then the defendant’s contention would still have some bearing . on the case, because he claims the gates are only 3^ miles apart. i

It is also insisted that to allow a defense of this kind would be a collateral attack upon the charter, that other remedies are provided by which a chartered turnpike company can be made to do the things required in its charter, and that proceedings to have the charter forfeited would be the remedy of defendant below if he was not satisfied with the condition of the pike.

We think the right to maintain a suit for a forfeiture of five dollars, as prescribed by the charter, and also by statute, depends upon the legal demand and right to collect toll. The forfeiture of five dollars is based upon a refusal to pay legal tolls, then, as a result, if the gates are nearer than authorized by law, a demand for toll at either gate would be an attempt to collect illegal charges, and the party upon whom the demand was made would have the right to decline to pay without bringing himself under the forfeiture statute or forfeiture provision of the charter.

We think that the Circuit Judge was in error in refusing to admit proof tendered to show the distance between gates Nos. 7 and 2, as also the mile marks and condition of the pike. This proof is permissible, and should not have been excluded by the trial Judge.

The judgment of the Circuit Court is reversed and the case remanded.

Judge Beard dissented.