Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n

216 S.W.2d 348, 187 Tenn. 654, 23 Beeler 654, 1948 Tenn. LEXIS 480
CourtTennessee Supreme Court
DecidedDecember 11, 1948
StatusPublished
Cited by16 cases

This text of 216 S.W.2d 348 (Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tiger Creek Bus Line v. Tiger Creek Transp. Ass'n, 216 S.W.2d 348, 187 Tenn. 654, 23 Beeler 654, 1948 Tenn. LEXIS 480 (Tenn. 1948).

Opinion

Mr. Justice Burnett

delivered the opinion of the Court.

The question posed here for our consideration is whether or not the Legislature by the enactment of Chapter 42 of the Public Acts of 1935 has excluded the petitioner from the jurisdiction of the State Railroad and Public Utilities Commission.

The petitioner has a “nonprofit Cooperative” charter granted pusuant to Code, section 4146(10). In view of this charter it takes the position that it' is not subject to the jurisdiction of the State Utilities Commissi on because of subsection (e) of Section 1, of Chapter 42 of the Public Acts of 1935. The caption of that act is:

“An Act to define and limit the authority, powers and jurisdiction of the Railroad and Public Utilities Commission so as to exempt therefrom certain Federal and State Corporations, Agencies, Instrumentalities, and other public bodies and certain non-profit organizations herein defined as non-utilities; to authorize utilities to sell, lease or otherwise dispose of their property to non-ütilitiés; and as a part hereof to amend sections 5380 to 5508, inclusive, of the official code of Tennessee, passed at the regular session of the General Assembly of the [657]*657State of Tennessee in 1931, known as the Code of Tennessee of 1932, said section of the code defining the term ‘Public Utility.’ ”

Section 1 of the act is:

“Public Utilities are Defined. — The term ‘public utility’ is defined to include every individual, copartnership, association, corporation, or joint stock company, their lessees, trustees, or receivers, appointed by any court whatsoever, that own, operate, manage, or control, within the State of Tennessee, any street railway, interurban electric railway, traction company, all other common carriers, express, gas, electric light, heat, power, water, telephone, ■ telegraph, or any other like system, plant or equipment, affected by and dedicated to the public use, under privileges, franchises, licenses, or agreements, granted by the state or by any political subdivision thereof; Provided, however, that the term ‘public utility’ as herein defined shall not be construed to include the following (hereinafter called non-utilities): (a) any corporation owned by or any agency or instrumentality of the United States; (b) any county, municipal corporation or other sudivision (subdivision) of the State of Tennessee ; (c) any corporation owned by or any agency or instrumentality of the State of Tennessee; (d) any corporation or joint stock company more than fifty per cent of the voting stock or shares of which is owned by the United State (States), the State of Tennessee or by any non-utility referred to in (a), (b), and (c) hereof; (e) any cooperative organization, association or corporation not organized or doing business for profit; (f) any of the foregoing non-utilities acting jointly or in combination or through a joint agency or instrumentality.”

The last above quotation is now carried in the code as section 5448.

[658]*658The petitioning corporation was organized as a nonprofit organization to operate a bus line in competition with a concern holding a certificate of convenience and necessity from the State Utilities Commission. This snit was brought to enjoin the petitioner here primarily on the ground that they did not possess such a certificate. They answered and set up their exemption to the jurisdiction of the State Utilities Commission because of the terms of the above Act. The Chancellor granted a permanent injunction concluding an able memorandum opinion thus:

“I prefer to sustain the hill on the broader holding that Chap. 42 Acts 1935 was not intended as and accordingly does not operate as an amendment or repeal of the Motor Carrier Act of 1933. For reasons hereinbefore indicated it is also held that defendant in its operation is subject to the jurisdiction of the railroad and Public Utilities Commission. Having failed to comply with the law, its operation constitutes an unjustified infringement on complainants’ right, of a nature properly supporting the prayer for injunctive relief.”

The Court of Appeals concurred in this conclusion and stated the determinative question in the following apt words:

“Did the Chancellor err in not holding that a cooperative operating a motor bus is exempt from the Motor Carrier Act, Chapter 119, Acts of 1933, carried into the Code as Sections 5501.1-5501.23, by the provisions of Chapter 42, Acts of 1935, redefining the term ‘public utility’, and providing that it should not include ‘(e) any cooperative organization, association or corporation not organized or doing business for profit.’ ”

[659]*659We granted certiorari because of tbe importance of tbe question. Tbe case bas been ably briefed and argued bere.

Tbe argument and reasoning of tbe petitioner is that tbe Legislature by tbe enactment of Chapter 42 of tbe Public Acts of 1935 made and intended tbis act to be an amendment to “sections 5380 to 5508, inclusive,” of tbe ■Code of 1932 because they so said in tbe caption of tbe Act as heretofore quoted. They say that since tbe Motor Carrier Act bas been codified as Sections 5501.1 to 5501.23 of tbe Code as it now is and was upon tbe enactment of tbe 1935 Act relied upon that certainly these sections 5501.1 to 5501.23 were and are included under “sections 5380 to 5508, inclusive”.

When tbe “Code of Tennessee of 1932” was adopted by tbe “General Assembly of tbe State of Tennessee in 1931” Code sections 5471 to 5501, both inclusive, embodied tbe statute law governing Motor Carriers. Tbe Legislature of 1933 by Chapter 119 of tbe Public Acts of that year expressly repealed Code “Sections 5471 to 5501, both inclusive, of said Code of Tennessee of 1932,” and by the same Chapter enacted an Act setting up a complete scheme governing Motor Carriers. Tbis new scheme was not enacted as an amendment to tbe Code sections repealed nor was it designated by any particular Code section or sections. Tbe compilers of tbe Code as it now exists saw fit to codify this Act (setting úp a complete scheme governing Motor Carriers) as Code Sections 5501.1 to 5501.23.

Code Sections 5471'to 5501, inclusive (governing Motor Carriers, having been repealed prior to the enactment of Chapter 42 of tbe Public Acts of' 1935 cannot be amended by that act because these Code Sections did [660]*660not exist. An amendatory act which attempts to amend an act which has previously been repealed is void and of no effect. State ex rel. Thompson v. Dixie Finance Co., 152 Tenn. 306, 316, 278 S. W. 59.

It, therefore, necessarily follows that Chapter 42 of the Public Acts of 1935 did not act as an amendment to the Motor Carrier Act as then existing even though the caption to this act did include in it Code sections which formerly covered Motor Carriers.

The body of the Act, Chapter 42 of Public Acts 1935, is clearly limited to Code Section 5448 which is the Section of the general utility statute defining the term “public utility”. There is no mention in the body of the Act of any other section. The effect of the Act was (1) to redefine the term “public utility” and (2) to permit any public utility as redefined to dispose of its assets and franchises to non-utilities as defined in Section 1 without the consent of the Railroad and Public Utilities Commission.

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Bluebook (online)
216 S.W.2d 348, 187 Tenn. 654, 23 Beeler 654, 1948 Tenn. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiger-creek-bus-line-v-tiger-creek-transp-assn-tenn-1948.